IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA )

Plaintiff, )

)

v. ) 3:04-CR-165-K

) (3:05-CV-0782-K)

JUSTIN LONGMIRE, )

Defendant/Movant. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. §636(b), and an Order of the Court in

implementation thereof, this case has been referred to the United States Magistrate Judge. The

findings, conclusions and recommendation of the Magistrate Judge follow:

FINDINGS AND CONCLUSIONS:

Type Case: This is a motion to vacate, set aside or correct sentence brought by a federal

prisoner pursuant to 28 U.S.C. § 2255.

Parties: Movant is presently confined at the Federal Correction Institution in Seagoville,

Texas. 

Statement of the Case: On December 21, 2004, Movant pled guilty to Count 1 of the

indictment, which charged him with possession with intent to distribute a controlled substance in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). On April 14, 2005, Movant appeared for

sentencing at which time the District Court imposed a sentence of 87 month imprisonment

followed by a four-year term of supervised release on Count 1 of the indictment. The remaining

counts were dismissed on motion of the government. On April 22, 2005, the District Court’s

written judgment was entered by the clerk on the docket. On April 28, 2005, Movant filed his

 

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notice of appeal. On April 20, 2005, he filed the pro se § 2255 motion under consideration. On

May 4, 2005, the Clerk transmitted the notice of appeal and docket sheet to the United States

Court of Appeals for the Fifth Circuit.

Findings and Conclusions: The Fifth Circuit has long held that a district court should not

entertain a § 2255 motion during the pendency of a direct appeal because “the disposition of the

appeal may render the motion moot.” Welsh v. United States, 404 F.2d 333 (5th Cir. 1968),

abrogated on other grounds, United States v. Ortega, 859 F.2d 327 (5th Cir. 1988); see also

Jones v. United States, 453 F.2d 351, 352 (5th Cir. 1972). Accordingly, Movant’s § 2255

motion should be dismissed without prejudice to Movant reasserting it after the Fifth Circuit has

ruled on his direct appeal. 

RECOMMENDATION:

For the foregoing reasons it is recommended that the motion to vacate, set aside or

correct sentence pursuant to 28 U.S.C. § 2255 be dismissed without prejudice to Movant

reasserting it after the Fifth Circuit Court of Appeals has ruled on his direct appeal.

Signed May 26, 2005.

___________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions and

recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must serve and

file written objections within ten days after being served with a copy. A party filing objections

must specifically identify those findings, conclusions or recommendation to which objections are

being made. The District Court need not consider frivolous, conclusory or general objections. A

party's failure to file such written objections to these proposed findings, conclusions and

recommendation shall bar that party from a de novo determination by the District Court. See

Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, any failure to file written objections to

the proposed findings, conclusions and recommendation within ten days after being served with

a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of

the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. 

Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

___________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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