Cooks v. USA, No. 3:2009cv01487 - Document 3 (N.D. Tex. 2009)

Court Description: FINDINGS AND RECOMMENDATIONS on case: Defendant's motion to correct, vacate, or set aside his sentence should be summarily dismissed without prejudice. Magistrate Judge Jeff Kaplan no longer assigned to case. (Ordered by Magistrate Judge Jeff Kaplan on 8/12/09) (jrb)

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Cooks v. USA Doc. 3 IN THE UNITED STATESDISTRICTCOURT DISTRICTOF TEXAS NORTHERN DALLAS DIVISION UNITED STATESOF AMERICA $ $ V S. $ VERNONCOOKS,JR. Defendant. $ $ $ $ I) NO. 3-06-CR-0085-L(0 NO.3-09-CV-1487-L FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE DefendantVernon Cooks,Jr., a federalprisoner,hasfiled a Rule 60(b) motion to vacatethe which judgment in his criminal caseand to order a new trial basedon newly discoveredevidence, the district judge has construedas a motion to correct, vacate,or set aside sentencepursuantto 28 U.S.C. 5 2255. For the reasonsstatedherein,the motion shouldbe dismissedwithout prejudice. I. of A federaljury convicteddefendant wire fraud in violation l8 U.S.C. $ 1343,bank fraud in violation of 18 U.S.C. g 1344,and money launderingin violation of 18 U.S.C. $ 1957(a). for release followed by supervised at Punishmentwas assessed a total of 135monthsconfinement, a period of five years. The district court also ordereddefendantto pay restitution in the amount of timely fied apro se notice of appeal. That appeal , Sl ,443,954.43 On October29,2007, defendant is currentlypendingbefore the Fifth Circuit. See United Statesv. Cool<s,No.07-11151(5th Cir., dkt'd Oct. 31,2007). On July 7,2009, defendantfiled the instantmotion. II. In one broad ground for relief, defendant contends that his conviction was the result of prosecutorialmisconduct. Dockets.Justia.com IIL "[A] criminal defendantmay not collaterally attack his conviction until it has beenaffirmed 858 F.2d 1016,1019(5th Cir. 1988),cert.denied,109 on directappeal."Fasslerv. UnitedStafes, (5th Cir. 1972).Where,ashere, S.Ct.2450(1989),citingJones UnitedStates,453F.2d35l,352 v. a defendant seeks section 2255 rellef while a direct appeal is pending, the district court should No. 3-07-CV-0078-L,2007 WL declineto address motion. See,e.g. Canalesv. UnitedStates, the 646189 at * I (N.D. Tex. Feb. 28,2AA7) (defendantmay not seekpost-conviction relief while direct appealis pending);Risby v. Wendt,No. 3-04-CV-0291-R,2004WL828067 at *5 (N.D. Tex. Apr. dism'd,No.04-10533 15,2004),rec.adopted,2004 WL 937013O{.D. Tex. Apr. 29,2004),appeal corpusas a section2255 motion (5th Cir. Nov. 15, 2004) (construingapplicationfor writ of habeas underlying criminal conviction was on appeal); and dismissing case without prejudice because united statesv. Norwood,No. 7-06-cv-187-R, 2006 wL 3350207at * 1 Q'{'D' Tex' Nov' 15,2006) (dismissingsection2255 motion as "premature"where direct appealwas pending). RECOMMENDATION It plainly appearsfrom the face of the motion and the record of prior proceedings that motion to defendantis not entitled to post-convictionrelief at this time. Accordingly, defendant's without prejudice.SeeRule shouldbe summarilydismissed correct,vacate,orsetasidehis sentence 4(b), Rules Governing Section2255 Cases. A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file See28U.S.C.$636(b)(l); specificwrittenobjectionswithinl0daysafterbeingservedwithacopy. FEo. R. CIv. P. 72(b). In order to be specific, an objection must identi$, the specific finding or recommendation which objectionis made,statethe basisfor the objection,and speciff the place to in the magistratejudge's report and recommendationwherethe disputeddeterminationis found. An objection that merely incorporatesby referenceor refers to the briefing before the magistratejudge is not specific. Failure to file specific written objectionswill bar the aggrievedparty from appealing judge that are acceptedor adoptedby the the factual findings and legal conclusionsofthe magistrate Automobile Ass'n, district court, exceptupon groundsofplain error. SeeDouglassv. United Services 79 F.3d 1415,l4l7 (5thCir. 1996). DATED: August 12,2009. STATES MAGISTRATE JUDGE

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