Bello v. United States, 4:24-cv-00435

Olamide Olatayo Bello, acting pro se, filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.
Bello is charged with Conspiracy to Commit Wire Fraud under 18 U.S.C. § 1349 in the Eastern District of Texas.
As of the opinion, Bello’s criminal case is still pending; he has not yet been tried, convicted, or sentenced.
Bello’s § 2255 motion was referred to a U.S. Magistrate Judge for recommendation.
The court examined whether it had jurisdiction to consider the § 2255 motion, given the lack of final conviction and sentence.
The magistrate recommended dismissal of the motion as premature, without prejudice, and denial of a certificate of appealability.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 2255 relief is available before conviction and sentencing	Alleged constitutional violations warrant immediate relief	Motion is premature; no final conviction or sentence	§ 2255 requires a final judgment; motion dismissed without prejudice
Entitlement to a Certificate of Appealability	Substantial showing of denial of rights	No substantial showing or debatable constitutional issue	COA denied; procedural dismissal not debatable among jurists

United States v. Clark, 816 F.3d 350 (5th Cir. 2016) (A § 2255 motion requires a final conviction and sentence)
Jones v. United States, 453 F.2d 351 (5th Cir. 1972) (No § 2255 collateral attack before conviction becomes final)
Fassler v. State, 858 F.2d 1016 (5th Cir. 1988) (§ 2255 motion cannot be brought before direct appeal is complete)
United States v. Bernegger, 661 F.3d 232 (5th Cir. 2011) (Premature § 2255 motions are dismissed without prejudice)
Alexander v. Johnson, 211 F.3d 895 (5th Cir. 2000) (District courts may sua sponte address certificate of appealability)
Miller-El v. Cockrell, 537 U.S. 322 (2003) (Standards for issuing a certificate of appealability)
Slack v. McDaniel, 529 U.S. 473 (2000) (Test for when a certificate of appealability should issue)