Case: 12-14095   Date Filed: 08/22/2013   Page: 1 of 4


                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-14095
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket Nos. 0:12-cv-61094-WPD,
                         0:11-cr-60090-WPD-1


TORY ANTHONY BLAIR,

                                                           Petitioner-Appellant,


                                   versus


UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (August 22, 2013)

Before CARNES, Chief Judge, TJOFLAT and BARKETT, Circuit Judges.

PER CURIAM:
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      Tory Blair appeals from a final order of the district court denying his motion

for post-conviction relief filed pursuant to 28 U.S.C. § 2255. Blair argues that,

because his direct appeal was pending at the time he filed his § 2255 motion to

vacate, the district court did not have jurisdiction to consider it. The government

agrees.

      Blair pled guilty to drug charges on July 8, 2011, and was sentenced on

October 25, 2011, to 78 months’ imprisonment followed by two years’ supervised

release. Blair’s trial counsel did not file a notice of appeal. On November 4, 2011,

Blair mailed a letter addressed to the district court titled “Appeal,” but he

mistakenly mailed it to the United States Attorney’s Office. He also mailed a pro

se notice of appeal that was docketed on January 27, 2012. As part of that notice

of appeal, Blair included a claim of ineffective assistance of counsel for failure to

timely file a notice of appeal, a request for a reduced sentence based on a

substantial assistance claim, and a claim of improper sentencing. The government

argued that once the notice of appeal was filed, the district court lost jurisdiction to

address those claims. The district court dismissed Blair’s request for relief without

prejudice. On May 22, 2012, the government moved to dismiss Blair’s appeal as

untimely filed.

      Meanwhile, on May 21, 2012, Blair filed a Motion Under 28 U.S.C. § 2255

to Vacate, Set Aside, or Correct Sentence, alleging constitutional error on the part


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of the district court and ineffective assistance of counsel on several grounds,

including failure to timely file a notice of appeal. Blair mistakenly stated in his

motion that his appeal had been dismissed on January 27, 2012. In its response to

Blair’s § 2255 motion, the government stated that it intended to withdraw its

motion to dismiss Blair’s direct appeal, and it recommended that the district court

dismiss the § 2255 motion without prejudice because of the pending direct appeal.

Despite the fact that Blair’s direct appeal was pending, the district court on June

26, 2012, denied Blair’s § 2255 motion.

      We review questions concerning jurisdiction de novo. Williams v. Chatman,

, 1293 (11th Cir. 2007).

      In the absence of extraordinary circumstances, a district court does not have

jurisdiction to consider or rule on a § 2255 motion during the pendency of a direct

appeal of the underlying criminal conviction or sentence. United States v.

Dunham, 

, 1329 (11th Cir. 2001); see also United States v. Khoury,

, 976 (11th Cir. 1990) (noting district court’s finding that no

extraordinary circumstances warranted consideration of § 2255 motion during

direct appeal). The appropriate course of action for addressing a § 2255 motion

filed during the pendency of the direct appeal is to dismiss the § 2255 action

without prejudice. See Dunham, 240 F.3d at 1330 (vacating order denying § 2255




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motion without prejudice to filing a § 2255 motion after disposition of direct

appeal).

      Because Blair was pursuing a direct appeal from his criminal conviction in

this Court at the time he filed his § 2255 motion, and because there were no

extraordinary circumstances requiring immediate consideration of that motion, the

district court lacked jurisdiction to consider it. Accordingly, the judgment of the

district court is vacated, and the case remanded with instructions to dismiss Blair’s

§ 2255 motion without prejudice.

      VACATED AND REMANDED.




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