FINAL REPORT AND RECOMMENDATION

MOTION TO VACATE 28 U.S.C. § 2255

RUSSELL G. VINEYARD, Magistrate Judge.

This matter has been submitted to the undersigned Magistrate Judge for consideration of Timothy Lenon's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Doc. 80]. For the reasons that follow, the undersigned finds that this § 2255 motion is premature and RECOMMENDS that this action be DISMISSED WITHOUT PREJUDICE pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings (hereinafter "Rule 4(b)").1

I. DISCUSSION

A federal grand jury in the Northern District of Georgia returned a third superseding indictment against Lenon, charging him with nine counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2 (Counts One through Nine), and one count of theft of government funds, in violation of 18 U.S.C. §§ 641 and 2 (Count Ten). [Doc. 41]. Represented by Natasha Silas of the Federal Defender Program, Inc., Lenon entered a negotiated guilty plea to Count Ten. [Docs. 5; 47; 71]. The government agreed to dismiss the remaining counts. [Doc. 47-1 at 4]. The Court sentenced Lennon to twenty-four months of imprisonment. [Doc. 56].

Lenon timely filed a notice of appeal, [Doc. 57], but subsequently filed a motion for voluntary dismissal of the appeal, which the United States Court of Appeals for the Eleventh Circuit granted on September 29, 2017, [Doc. 70]. However, Lenon filed a second notice of appeal on December 1, 2017, [Doc. 76], which remains pending, see [Doc. 81]. Lenon also filed this unsigned § 2255 motion on December 1, 2017, asserting that he received ineffective assistance of counsel and unspecified sentencing guidelines and Fifth Amendment violations. [Doc. 80].

Because Lenon's appeal is currently pending before the Eleventh Circuit, this Court lacks jurisdiction to consider and rule on his § 2255 motion. See United States v. Casaran-Rivas, 311 F. App'x 269, 272-74 (11th Cir. 2009) (per curiam); United States v. Dunham, 240 F.3d 1328, 1329-30 (11th Cir. 2001) (per curiam); United States v. Stanley, No. 1:09-cr-406-TCB-JFK-2, 2013 WL 4541834, at *1 (N.D. Ga. Aug. 26, 2013). Accordingly, Lenon's § 2255 motion is due to be dismissed without prejudice as premature. See id.

II. CERTIFICATE OF APPEALABILITY

Rule 22(b)(1) of the Federal Rules of Appellate Procedure provides that an applicant for § 2255 relief "cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)." Rule 11 of the Rules Governing Section 2255 Proceedings for the United States District Courts provides, "The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Section 2253(c)(2) of Title 28 states that a COA shall not issue unless "the applicant has made a substantial showing of the denial of a constitutional right." A movant satisfies this standard by showing "that reasonable jurists could debate whether (or, for that matter, agree that) the [motion] should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Because the dismissal of Lenon's § 2255 motion as premature is not debatable by jurists of reason, the undersigned recommends that he be denied a COA.

III. CONCLUSION

For the foregoing reasons, IT IS HEREBY RECOMMENDED that Lenon's premature § 2255 motion, [Doc. 80], be DISMISSED WITHOUT PREJUDICE pursuant to Rule 4(b) and that a COA be DENIED.

The Clerk is DIRECTED to terminate the referral of the § 2255 motion to the Magistrate Judge.

SO RECOMMENDED.