MEMORANDUM ORDER

DANNY C. REEVES, Chief District Judge.

Defendant Eric Christopher Conn has filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [Record No. 93] The matter was referred to United States Magistrate Judge Candace J. Smith for issuance of a Report and Recommendation in accordance with 28 U.S.C. § 636(b). After conducting a preliminary review, Magistrate Judge Smith recommended that the motion be denied for lack of jurisdiction. [Record No. 95]

This Court conducts a de novo review of those portions of the Magistrate Judge's recommendation to which objections are made, 28 U.S.C. § 636(b)(1)(C), but "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings." Thomas v. Arn, 474 U.S. 140, 150 (1985). Conn has not filed any timely objections to Magistrate Judge Smith's Report and Recommendation. Nevertheless, the Court has examined the record and, having conducted a de novo review of the matter, agrees with Magistrate Judge Smith that the Court lacks jurisdiction to review Conn's §2255 petition in this case.

Conn was a defendant in several criminal cases, including Lexington Criminal Action No. 5: 17-104-DCR, Lexington Criminal Action No. 5: 16-22-DCR, and Lexington Criminal Action No. 5: 18-59-DCR. His criminal conduct arose from a wide-spread Social Security fraud scheme and his subsequent attempt to flee the jurisdiction. In this case (Lexington Criminal Action No. 5: 17-104-DCR), Conn was charged with conspiracy to escape in violation of 18 U.S.C. § 371, escape in violation of 18 U.S.C. § 751(a), conspiracy to fail to appear in violation of 18 U.S.C. § 371, and failure to appear in violation of 18 U.S.C. § 3146(a)(1). Conn reached an agreement to plead guilty in Lexington Criminal Action No. 5: 18-59-DCR and, upon entry of the judgment, the charges in Lexington Criminal Action No. 5: 16-22-DCR and Lexington Criminal Action No. 5: 17-104-DCR were dismissed. Conn recently filed the same § 2255 petition in both Lexington Criminal Action No. 5: 18-59-DCR and Lexington Criminal Action No. 5: 17-104-DCR.

A defendant can move to collaterally attack his sentence if he is "in custody under a sentence of a court established by Act of Congress." 28 U.S.C. § 2255(a). A defendant is required to be "in custody" for the conviction or sentence under attack at the time he files a habeas petition. Maleng v. Cook, 490 U.S. 488, 491 (1989); see also United States v. Council, No. 4:11 CR 101, 2012 U.S. Dist. LEXIS 53732, at *6 (N.D. Ohio Apr. 17, 2012) ("As this case has not yet been tried, no conviction has been rendered, and no sentence has been imposed, there is no remedy available to [the defendant] under 28 U.S.C. § 2255."); Manzano v. United States, No. 02-110-JB5532, 2011 U.S. Dist. LEXIS 135532, *4-5 (E.D. Ky. Nov. 22, 2011). Here, as Magistrate Judge Smith correctly explains, there is no conviction or sentence in this case for Conn to attack, vacate, or set aside. Accordingly, the Court lacks jurisdiction to entertain his § 2255 petition in this case.

A Certificate of Appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); 28 U.S.C. § 2253(c)(2). When the denial of a motion filed under § 2255 is based on a procedural ruling, the defendant must demonstrate that reasonable jurists would find it debatable whether the district court was correct in its ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Reasonable jurists would not find this Court's procedural finding fairly debatable. Accordingly, it is hereby

ORDERED as follows:

1. The Magistrate Judge's Report and Recommendation [Record No. 95] is ADOPTED and INCORPORATED by reference.

2. Defendant/Movant Eric Conn's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 [Record No. 93] is DENIED. His claims are DISMISSED, with prejudice, and STRICKEN from the Court's docket.

3. A Certificate of Appealability will not issue.