Watts v. United States, 4:17-cv-00097

Movant Lamarlvin Watts was convicted by a jury of armed bank robbery and brandishing a firearm; his direct appeal to the Eleventh Circuit is pending.
While the appeal remains pending, Watts filed a 28 U.S.C. § 2255 motion seeking to vacate his sentence.
The magistrate judge reviewed procedural law governing collateral attacks while direct appeals are unresolved.
The court explained that § 2255 is intended for strictly post-conviction relief and that collateral and direct-review proceedings should not proceed simultaneously in the ordinary case.
Finding no extraordinary circumstances that would justify simultaneous review, the magistrate judge recommended dismissing Watts’ § 2255 motion without prejudice as premature and noted a later § 2255 would not be considered second or successive.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a § 2255 motion may proceed while direct appeal is pending	Watts seeks collateral relief via § 2255 now	Gov’t relies on rule barring collateral relief during pendency of direct appeal	§ 2255 motion is premature and should be dismissed without prejudice
Whether any extraordinary circumstances justify simultaneous review	Watts implies need for immediate collateral review	Gov’t asserts no extraordinary circumstances exist	Court finds no extraordinary circumstances to permit simultaneous proceedings
Whether dismissal would render a later § 2255 second or successive	Watts may fear future procedural bar	Gov’t argues dismissal is without prejudice and not successive	Court notes a later § 2255 after appeal is resolved would not be second or successive
Whether failure to object to the R&R will affect appellate rights	N/A (procedural warning)	N/A	Parties warned to file objections within 14 days or risk waiving appellate rights

United States v. Casaran-Rivas, 311 F. App’x 269 (11th Cir. 2009) (§ 2255 is for post-conviction relief; collateral attack improper while direct appeal pending)
United States v. Khory, 901 F.2d 975 (11th Cir. 1990) (absent extraordinary circumstances, collateral relief may not proceed during direct appeal)
Kapral v. United States, 166 F.3d 565 (3d Cir. 1999) (collateral attack inappropriate if further direct review remains available)
Welsh v. United States, 404 F.2d 333 (5th Cir. 1968) (§ 2255 motions will not be entertained during a pending direct appeal)
Jack v. United States, 435 F.2d 317 (9th Cir. 1970) (simultaneous pursuit of direct appeal and § 2255 is generally impermissible)