Anderson v. USA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
THELMA MARSHELL ANDERSON, 	§
Movant, 	§
§
v. 	§ 	CIVIL NO. 3:26-cv-726-K
§ 	(CRIMINAL NO. 3:24-cr-191-K-1)
UNITED STATES OF AMERICA, 	§
Respondent. 	§
MEMORANDUM OPINION AND ORDER
Before the Court is Movant Thelma Marshell Anderson pro se motion to vacate,
set aside, or correct sentence under 28 U.S.C. § 2255. 	Based on the relevant filings
and applicable law, the Motion is DISMISSED without prejudice as premature.
I. 	BACKGROUND
After indictment, Anderson pled guilty under a plea agreement to one count of
wire fraud, in violation of 18 U.S.C. § 1343. See Crim. Dkt. Nos. 1, 13, 14, 18, 20, 21.
By judgment entered March 5, 2025, the Court sentenced her to four years of
probation and to pay restitution in the amount of $20,871.00. See Crim. Dkt. No. 29.
Anderson timely filed a direct appeal on March 31, 2025. See Crim. Dkt. No.
31. Although the appeal was initially dismissed for want of prosecution, it was
reinstated and counsel was appointed to represent Anderson in the appeal. See Crim.
Dkt. Nos. 33, 36, 37. The direct appeal is currently pending in the United States Court
of Appeals for the Fifth Circuit. See United States v. Anderson, No. 25-10467 (5th Cir.).
Anderson then filed this motion seeking habeas relief under 28 U.S.C. § 2255.
See Dkt. No. 1.
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II. 	SECTION 2255
“Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional
rights and for a narrow range of injuries that could not have been raised on direct appeal
and would, if condoned, result in a complete miscarriage of justice.” United States v.
Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citations and internal quotation marks
omitted). It has been repeatedly established that a “collateral challenge may not do
service for an appeal.” United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991)
(quoting United States v. Frady, 456 U.S. 152, 165 (1982)).
“It is a jurisdictional requirement of § 2255 that the conviction and sentence
being challenged are final.” United States v. Clark, 816 F.3d 350, 362 (5th Cir. 2016)
(citing Jones v. United States, 453 F.2d 351, 352 (5th Cir. 1972) (per curiam)). A § 2255
motion therefore is “not entitled to consideration on the merits” when an appeal of the
challenged conviction and sentence remains pending. Jones 453 F.2d at 352; see also
United States v. Bernegger, 661 F.3d 232, 241 (5th Cir. 2011) (per curiam) (“A defendant
cannot collaterally attack his conviction until it has been affirmed on direct appeal.”).
This is because “the disposition of the appeal may render the [§ 2255] motion moot.”
United States v. Fantozzi, 90 F. App’x 73, 74 (5th Cir. 2004) (per curiam) (quoting Welsh
v. United States, 404 F.2d 333, 333 (5th Cir. 1968), abrogated on other grounds by United
States v. Ortega, 859 F.2d 327, 334 (5th Cir. 1988)).
A review of the docket for Anderson’s direct appeal shows that appellate counsel
filed a brief under Anders v. California, 386 U.S. 738 (1967), on December 18, 2025.
See Anderson, No. 25-10467, Dkt. No. 54 (5th Cir. Dec. 18, 2025). But the Fifth Circuit
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has not dismissed Anderson’s direct appeal. As such, Anderson’s conviction and
sentence are not yet final for purposes of § 2255. See, e.g., United States v. Redd, 562
F.3d 309, 311 (5th Cir. 2009) (recognizing that “[f]inality attaches when [the
Supreme] Court affirms a conviction on the merits on direct review or denies a petition
for a writ of certiorari, or when the time for filing a certiorari petition expires.” (cleaned
up)). Because Anderson’s conviction and sentence are not yet final, her premature
Motion is not ripe for consideration on the merits and is subject to dismissal without
prejudice to her re-filing, if necessary, once her conviction and sentence become final.
See United States v. Zuniga-Salinas, 945 F.2d 1302, 1306 n.1 (5th Cir. 1991).
III. 	CONCLUSION
For the foregoing reasons, the Court DISMISSES Movant Thelma Marshell
Anderson’s motion without prejudice as premature.
SO ORDERED.
Signed March 24th , 2026. 	________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE
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