REPORT AND RECOMMENDATION

P. BRADLEY MURRAY, Magistrate Judge.

Pending before the Court is Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 69), Petitioner's Motion to Amend Previous Memorandum of Law and Petition § 2255 (Doc. 70), and Respondent United States' Motion to Dismiss Motion to Vacate Sentence (Doc. 71). This matter has been referred to the undersigned for the entry of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), Rule 8(b) of the Rules Governing Section 2255 Proceedings, and General Local Rule 72(a)(2)(R). It is recommended that Petitioner's motion to amend be granted, that Respondent's motion to dismiss be granted, and that Petitioner's motion to vacate be dismissed, without prejudice, for the reasons set forth herein.

Petitioner entered a guilty plea to conspiracy to possess with intent to distribute cocaine and was initially sentenced to 120 months imprisonment. (Docs. 38, 51). He filed a motion to amend his sentence, which was granted, and his sentence was amended to 110 months. (Docs. 53, 57). On August 12, 2016, he filed a notice of appeal, through counsel, from his amended judgment and sentence. (Doc. 58). The appeal was docketed in the Eleventh Circuit Court of Appeals and assigned an appeal number, 16-15670-A. (Doc. 61). Petitioner's attorney filed an Anders brief on his behalf on June 28, 2017 and a motion to withdraw as counsel for Petitioner on July 17, 2017. (Docket sheet from Appeal No. 16-15670-A). Both Petitioner's appeal and his attorney's motion to withdraw remain pending in the Eleventh Circuit. (Id.).

In his § 2255 motion, Petitioner alleges that his attorney did not file a Notice of Appeal challenging his sentence and has asked this Court to allow him to file a belated direct appeal to the Eleventh Circuit and to appoint him new counsel. (Doc. 69). On June 19, 2017, Petitioner filed a Motion to Amend Previous Memorandum of Law and Petition § 2255. (Doc. 70). In this motion, Petitioner acknowledges that his attorney filed a notice of appeal, but mistakenly believes that he is presently not represented by counsel. He seeks an order from this Court allowing him to proceed pro se and in forma pauperis in the Eleventh Circuit. Respondent has filed a motion to dismiss Petitioner's motion to vacate under § 2255 on the grounds that his motion to vacate is premature because his appeal remains pending in the Eleventh Circuit and, as of yet, his counsel has not been granted leave to withdraw. (Doc. 71).

The docket sheet from the Eleventh Circuit Court of Appeals reflects that Respondent is correct. Petitioner's motion to vacate is based on a misunderstanding of the facts. Contrary to his assertions, his appeal remains pending and he is currently represented by counsel. Therefore, the undersigned Magistrate Judge recommends that (1) Petitioner's motion to amend his original § 2255 motion be GRANTED, (2) Respondent's motion to dismiss the motion to vacate under § 2255, as amended, be GRANTED, and (3) Petitioner's motion to vacate, as amended, be DISMISSED, without prejudice, as premature. Petitioner is not entitled to a certificate of appealability and, therefore, he is not entitled to appeal this ruling in forma pauperis.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); S.D. Ala. Gen. LR 72(c)(1) & (2). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.