United States District Court

Eastern District of Michigan

Southern Division

United States of America,

Plaintiff, Case No. 15-CR-20382

v. Honorable Victoria A. Roberts

 Magistrate Judge Elizabeth Stafford

D-1 Paul Nicoletti,

 

Defendant.

/

Government’s Emergency Motion for 

Revision of Briefing Schedule on Defendant’s 

Motion to Vacate under 28 U.S.C. § 2255 [ECF No. 195]

The United States of America respectfully moves this Court to revise the 

briefing schedule for Defendant’s Motion to Vacate (ECF No. 195) for the 

following reasons:

1. Defendant’s Motion to Vacate (ECF No. 195) was filed pro se on February 

1, 2021, while his case was pending on direct appeal before the United States 

Court of Appeals for the Sixth Circuit;

2. On March 11, 2021, pursuant to Rule 4(b) of the Rules Governing Section 

2255 Proceedings, this Court docketed a briefing schedule requiring a response 

from the government to the Motion to Vacate only eight days later, by March 19, 

2021;

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3. On March 12, 2021, the government filed a Motion to Dismiss or Defer 

Consideration of Defendant’s Motion to Vacate (ECF No. 200), which is still 

pending;

4. As set forth in the government’s Motion to Dismiss or Defer Defendant’s 

Motion to Vacate (ECF No. 200, PageID. 3360-3370), Defendant’s Motion to 

Vacate was filed while his case was on direct appeal contrary to Sixth Circuit 

precedent, and by Defendant, pro se, while he was represented by counsel, 

contrary to this Court’s previous denial of Defendant’s attempts to proceed through 

hybrid representation;

5. The government has not prepared a substantive response to Defendant’s 

Motion to Vacate because the case remained on direct appeal and the Motion was 

therefore not properly before the Court;

6. On March 18, 2021, the Sixth Circuit Court of Appeals filed an opinion 

affirming Defendant’s conviction (ECF No. 201);

7. Defendant’s Motion to Vacate raises, among other things, issues of 

ineffective assistance of counsel by more than one of Defendant’s prior counsel 

which will require investigation, potentially findings by the Court that Defendant 

has waived attorney-client privilege by making such arguments, and, potentially, 

an expansion of the record under Rule 7 of the Rules Governing Section 2255 

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Proceedings, all of which would require far more than eight days to determine;

8. The government sought but has not received concurrence in this motion 

from Defendant through his counsel.

WHEREFORE, the United States respectfully requests that the Court, should 

it deny the government’s motion to dismiss, revise the briefing schedule for this 

motion to provide that the government not be required to respond until on or 

before May17, 2021, or approximately 60 days from the date that the Court of 

Appeals affirmed Defendant’s convictions. 

Respectfully submitted,

Saima S. Mohsin

Acting United States Attorney

s/Craig A. Weier

Craig A. Weier (P33261)

Assistant United States Attorney

Eastern District of Michigan

211 W. Fort St., Suite 2001

Detroit, Michigan 48226

313.226.9678

craig.weier@usdoj.gov

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United States District Court

Eastern District of Michigan

Southern Division

United States of America,

Plaintiff, Case No. 15-CR-203

v. Honorable Victoria A. Roberts 

 Magistrate Judge Elizabeth Stafford

D-1 Paul Nicoletti,

 

Defendant.

/

Brief in Support of Government’s Emergency Motion for

Revision of Briefing Schedule on Defendant’s Motion

to Vacate under 28 U.S.C. § 2255 [ECF No. 195]

Relevant Facts

Nicoletti filed a Motion to Vacate under 28 U.S.C. § 2255 on February 1, 

2021 (ECF No. 195). At that time, this case was on direct appeal, having been 

orally argued just days before. (United States v. Paul Nicoletti, No. 20-1137 (6th

Cir.). He filed the motion pro se, even though he was represented by counsel in 

this Court, and by two attorneys in the United States Court of Appeals. (See, ECF. 

No. 200: Government’s Motion to Dismiss or Defer Defendant’s Motion to 

Vacate). This Court did not order any response from the government pursuant to 

Rule 4(b) of the Rules Governing Section 2255 Proceedings until March 11, 2021, 

when it ordered the government to respond to the Motion to Vacate by March 19, 

2021. (Docket Entry for March 11, 20021). On March 12, 2021, the government 

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filed its Motion to Dismiss or Defer Defendant’s Motion to Vacate. (ECF No. 200: 

Motion). Nicoletti has not yet responded to the government’s motion, and it 

remains pending before this Court. Defendant’s Motion to Vacate is based on a 

number of extra-judicial factual allegations and accuses two of his preceding four 

lawyers of ineffective assistance of counsel in pretrial and trial proceedings. (Doc. 

No. 195, PageID. 3310-3315). On March 18, 2021, the Court of Appeals affirmed 

Defendant’s conviction. (ECF No. 201: Opinion from U.S. Court of Appeals). 

Argument

As soon as the Court requested a response from the government to 

Defendant’s Motion to Vacate, it drafted and, on the next day, filed a Motion to 

Dismiss the motion on two grounds. (ECF No. 200, PageID. 3360-3370). First,

Defendant’s Motion to Vacate was filed while his case was on direct appeal 

contrary to Sixth Circuit precedent. (Id.). Second, the Motion was filed by the 

Defendant, pro se, while he was represented by able counsel in this Court and by 

two able counsel in the U.S. Court of Appeals, contrary to this Court’s previous 

denial of Defendant’s attempts to proceed through hybrid representation. (Id.).

Because the Defendant’s Motion to Vacate was improperly filed, the government 

did not argue the substance of the motion, but rather sought dismissal or, at the 

very least, deferral of the Court’s consideration of the Motion until after the Court 

of Appeals ruled on the direct appeal. (Id.). 

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But even if the defendant’s Motion to Vacate had been properly before the 

Court, the government would have been unable to respond to it substantively in the 

eight days allowed, given the extra-judicial facts it alleged and the nature of the 

issues in raised, i.e., ineffective assistance of two of the defendant’s pretrial and 

trial counsel. Such allegations require investigation, including interviews with the 

attorneys who Defendant claims were ineffective. Such interviews, in turn, may 

entail the necessity for a Court ruling on the scope and waiver of attorney/client 

privilege in light of the allegations of ineffective assistance. In any event, the 

government cannot adequately address the allegations and respond in a brief to the 

Court eight days after the response is requested. From experience, it is not at all 

unreasonable for such investigations and responses to require upwards of 60 days. 

If litigation ensues over the attorney-client privilege and its parameters, even more 

time may be required. 

Because Defendant’s Motion to Vacate was improperly filed and the 

prevailing case law in the Sixth and other circuits is that the Court may not

consider a motion under 28 U.S.C. § 2255 while a direct appeal is pending absent 

extraordinary circumstances, the government was not unreasonable in its 

expectation that the motion would be dismissed without prejudice subject to 

refiling after the Court of Appeals rendered its decision. This was especially true 

where Defendant filed the motion pro se even though represented by counsel after 

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having been instructed by the Court that it would not accept such hybrid 

representation going forward. Moreover, the nature of Defendant’s allegations of 

fact and issues raised require far more time for a thoughtful and thorough response. 

Conclusion

For the reasons stated above, the United States respectfully requests that the 

Court revise its briefing schedule so as to require a response from the United States 

no earlier than May 17, 2021.

Respectfully submitted,

Saima S. Mohsin

Acing United States Attorney

s/Craig A. Weier

Craig A. Weier (P33261)

Assistant United States Attorney

Eastern District of Michigan

211 W. Fort St., Suite 2001

Detroit, Michigan 48226

313.226.9678

craig.weier@usdoj.gov

s/John K. Neal

John K. Neal 

Assistant United States Attorney

Eastern District of Michigan

211 W. Fort St., Suite 2001

Detroit, Michigan 48226

313.226.

craig.weier@usdoj.gov

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CERTIFICATE OF SERVICE

I certify that on March 19, 2021, I electronically filed the foregoing 

document with the Clerk of Court using the CM/ECF system, which will send 

notification of such filing to the following attorney for the defendant:

Paul Stablein

s/Craig A. Weier 

Craig A. Weier (P33261)

Assistant United States Attorney

Eastern District of Michigan

211 W. Fort St., Suite 2001

Detroit, Michigan 48226

313.226.9678

craig.weier@usdoj.gov

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