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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 3:01cr8/RV

 3:12cv507/RV/EMT

WALTER DEVON GRANDISON

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s motion to vacate, set aside, or correct

sentence pursuant to 28 U.S.C. § 2255 and memorandum in support (docs. 199, 200). The court

notes that Defendant failed to properly complete the court-approved form for use in section 2255

cases, instead referring to the attached memorandum of law. Local Rule 5.1(J)(2) for the Northern

District of Florida states that the court will not accept for consideration a motion pursuant to section

2255 unless the appropriate form is properly completed and filed. After review of the docket, it

appears that amendment would be futile at this time, as this court does not have jurisdiction to

consider Defendant’s motion. 

It is well established that the district court lacks jurisdiction to consider and rule on a § 2255

motion during the pendency of the direct appeal. United States v. Dunham, 240 F.3d 1328, 1329–30

(11th Cir. 2001); see also United States v. Khoury, 901 F.2d 975, 976 n.20 (11th Cir. 1990),

modified by, United States v. Khoury, 910 F.2d 713 (11th Cir. 1990); Welsh v. United States, 404

F.2d 333 (5th Cir. 1968) (“[a] motion to vacate sentence under 28 U.S.C. § 2255 will not be

entertained during the pendency of a direct appeal, inasmuch as the disposition of the appeal may

render the motion moot.”). Although Defendant’s appeal of his 2001 conviction has long been

resolved, there is currently an appeal pending in Defendant’s case (see docs. 195–198) that could
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render moot the issues raised in the instant § 2255 motion, and therefore, the motion should be

dismissed without prejudice. 

Defendant Walter Devon Grandison was originally sentenced to a term of 360-months

imprisonment in June of 2001 for various controlled substance offenses (see docs. 66, 68). His

conviction and sentence were affirmed on appeal in June of 2002 (doc. 98). Defendant filed a

motion to vacate pursuant to 28 U.S.C. § 2255 in April of 2005, which was summarily dismissed

as untimely (see docs. 101–105). He appealed, and after his request for a certificate of appealability

was denied, the appeal was dismissed (docs. 107, 112, 121, 122). 

In January of 2008 Defendant filed a “Motion for Reduction of Sentence” pursuant to 18

U.S.C. § 3582(c)(2) (doc. 124), which the Government moved to dismiss (doc. 126). The court

denied Defendant’s motion (doc. 130), Defendant appealed (doc. 132), and the Eleventh Circuit

vacated the district court’s order and remanded the case for reconsideration (doc. 154). The district

court then granted Defendant’s motion and reduced his sentence from 360 to 324 months (doc. 156). 

Defendant appealed that order (doc. 157), and the Eleventh Circuit affirmed (doc. 167). 

In November of 2011 Defendant filed a “Motion to Modify Term of Imprisonment Pursuant

to 18 U.S.C. § 3582(c)(2), Retroactive Amendment 750” (doc. 169). The district court denied the

motion after considering all of the submissions, having concluded that Defendant was ineligible for

a reduction (see docs. 170, 173, 174). It also issued a Statement of Reasons, which it subsequently

amended to correct a scrivener’s error in the applicable Guidelines range after Defendant filed a

“Motion Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure to Alter or Amend

Judgment” (see docs. 175–78). 

In March of 2012 Defendant filed a “Motion Pursuant to 18 U.S.C. § 3582(c)(2) to Modify

or Reduce Term of Imprisonment” (doc. 179), which the court denied (doc. 181) after response from

the Government (doc. 180). Defendant appealed (doc. 182). While his appeal was pending, he filed

a “Motion for Post-Sentencing Rehabilitation Pursuant to 18 U.S.C. § 3661, and Pepper v. Untied

States” (doc. 187), which was denied on July 3, 2012, on the basis that there was no jurisdiction or

legal authority for re-sentencing (doc. 188). On July 27, 2012, the Eleventh Circuit vacated the

district court’s order denying Defendant’s § 3582 motion (doc. 181) and remanded for

reconsideration (doc. 190). Upon reconsideration on July 31, 2012, the district court issued an

Case Nos.: 3:01cr8/RV; 3:12cv507/RV/EMT
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amended order in which it reduced Defendant’s term of imprisonment from 324 to 270 months and

issued an amended statement of reasons (see docs. 191, 192). 

Defendant then filed a motion pursuant to Rule 60(b)(6) (doc. 193). In this motion, he

contended that the court should reexamine the order entered on July 3, 2012, denying Defendant’s

motion for reduction of sentence based on post-sentencing rehabilitation (id. at 1). Defendant also

argued that there were errors in the court’s calculations that affected its order of July 31, 2012,

regarding his § 3582 motion (id. at 3–6). Defendant’s Rule 60(b) motion was denied (doc. 194), and

he appealed (doc. 195). This appeal, which potentially affects the district court’s orders of both July

3 (doc. 188) and July 31, 2012 (doc. 191) is still pending. 

In the instant motion to vacate, Defendant challenges the district court’s order issued July

31, 2012 (see doc. 199 at 1). As noted above, he provides no information about the nature of his

challenge on the § 2255 form itself, other than to identify “incorrect sentence” as his ground for

relief and reference his memorandum of law. In the memorandum of law, he indicates his intent to

“correct” the sentence entered on July 31, 2012 (doc. 200 at 2), despite the fact that a challenge to

this sentence is currently pending on appeal. Defendant’s motion should be dismissed without

prejudice to its reassertion, if appropriate, upon the conclusion of his appeal. 

Certificate of Appealability

Rule 11(a) of the Rules Governing Section 2255 Proceedings provides that “[t]he district

court must issue or deny a certificate of appealability when it enters a final order adverse to the

applicant,” and if a certificate is issued “the court must state the specific issue or issues that satisfy

the showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be filed, even

if the court issues a certificate of appealability. § 2255 Rule 11(b).

After review of the record, the court finds no substantial showing of the denial of a

constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84, 120 S. Ct. 1595,

1603–04, 146 L. Ed. 2d 542 (2000) (explaining how to satisfy this showing) (citation omitted). 

Therefore, it is also recommended that the court deny a certificate of appealability in its final order.

Rule 11(a) also provides: “[b]efore entering the final order, the court may direct the parties

to submit arguments on whether a certificate should issue.” If there is an objection to this

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recommendation by either party, that party may bring this argument to the attention of the district

judge in the objections permitted to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. The motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (doc.

199) be DISMISSED without prejudice. 

2. No certificate of appealability be issued.

At Pensacola, Florida, this 24th day of October 2012.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy hereof. Any different deadline that may appear on the

electronic docket is for the court’s internal use only, and does not control. A copy of any

objections shall be served upon any other parties. Failure to object may limit the scope of

appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

Case Nos.: 3:01cr8/RV; 3:12cv507/RV/EMT