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 Motion to Dismiss or Defer Defendant’s

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

The United States of America respectfully moves this Court to dismiss as 

premature Defendant’s Motion to Vacate [ECF No. 195] or, in the alternative, 

defer consideration and scheduling of such motion until Defendant’s direct appeal 

has been decided, for the reasons set forth in the supporting brief.

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

Case 2:15-cr-20382-VAR-MKM ECF No. 200, PageID.3360 Filed 03/12/21 Page 1 of 11
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 Brief in Support of its Motion to Dismiss or Defer 

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

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

John K. Neal

Assistant United States Attorney

Eastern District of Michigan

211 W. Fort St., Suite 2001

Detroit, Michigan 48226

313.226.96

craig.weier@usdoj.gov

Case 2:15-cr-20382-VAR-MKM ECF No. 200, PageID.3361 Filed 03/12/21 Page 2 of 11
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Table of Contents

Index of Authorities...................................................................................i

Controlling Authorities...............................................................................i

Statement of the Issue................................................................................ii

Introduction/Procedural Posture....................................................................1

Argument..............................................................................................2

A. Nicoletti’s Motion to Vacate is premature.............................................2

B. Nicoletti’s pro se motion should not be 

considered where he is represented by

counsel.......................................................................................4

Conclusion.............................................................................................6

Index of Authorities

Capaldi v. Pontesso, 135 F.3d 1122 (6th Cir.1998) .............................................2

Smith v. United States, No. 95–3980, 1996 WL 330864 (6th Cir. 1996)......................2

United States v. Robinson, 8 F.3d 398, 405 (7th Cir. 1993)......................................3

United States v. Jones, No. 1:13-cr-7, 2014 WL 12925031

28 U.S.C. § 2255 (W.D. Michigan 2014)..........................................................4

United States v. Hills, No. 12-12254, 2014 WL 1400815 (E.D. Michigan 2014)............4

United States v. Rogers, No. 11-20749, 2014 WL117317 (E.D. Michigan 2014)...........4

United States v Wright, No. 6:17-cr-43-REW-3, 2019 WL 4863488 (E.D. Kentucky 

2019)...................................................................................................4

Controlling Authorities

Capaldi v. Pontesso, 135 F.3d 1122 (6th Cir.1998).............................................2

28 U.S.C. § 2255.....................................................................................2

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Statement of the Issue

Should the Court dismiss or, alternatively, defer consideration of Nicoletti’s 

Motion to Vacate under 28 U.S.C. § 2255 while his conviction and sentence are on 

direct appeal?

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Introduction

Nicoletti, represented by able counsel here (Paul J. Stablein, Esq.) and two 

able counsel in the Sixth Circuit Court of Appeals (Tyler Chance Yarbro, Esq. and 

Donald Capparella, Esq.), filed this motion to vacate his conviction and sentence 

pro se, while his direct appeal was pending before the Sixth Circuit Court of 

Appeals. Had he consulted his counsel, he would have found that, absent 

extraordinary circumstances, the district court is precluded from considering relief 

under 28 U.S.C. § 2255 while his conviction and sentence are on direct appeal. 

Moreover, because Nicoletti has three competent attorneys of record, this Court 

should reject Nicoletti’s attempt at hybrid representation as it has in the past. For

both or either of these reasons, this Court should dismiss Nicoletti’s pro se petition 

or defer its consideration until such time as the court of appeals rules on his 

pending appeal.

Procedural Posture

This Court sentenced Nicoletti to serve 70 months in custody on January 30, 

2020. (ECF No.168, PageID. 2340-2341: Judgement). Nicoletti filed a timely 

notice of appeal (ECF No.169, PageID. 2347: Notice of Appeal), retained two 

attorneys for appeal, and filed his appellant’s brief on July 6, 2020. (Docket Sheet, 

United States v. Paul Nicoletti, No.20-1137 (6th Cir.)) Briefing was completed on 

November 9, 2020, with the filing of Nicoletti’s reply brief, and the case was 

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argued orally (by Zoom) on January 28, 2021. (Id.). The Sixth Circuit Court of 

Appeals has not yet rendered its decision. (Id.). Nicoletti has not yet reported to his 

designated institution due to a series of stipulations and orders extending his report 

date to April 1, 2021. (ECF No.194, PageID. 3304-3306: Stipulation and Order).

This Court previously denied Nicoletti’s motion for bond pending appeal (ECF 

No., PageID. 3147-3165), but a second motion for bond, filed by his appellate 

counsel, is pending before the Sixth Circuit Court of Appeals. (Sixth Cir. Case No. 

20-1137, ECF No.39-1: Motion). The parties have no indication as to when 

Nicoletti’s direct appeal, or motion for bond pending appeal, will be decided. On 

February 1, 2021, Nicoletti filed the present motion to vacate under 28 U.S.C. 

§ 2255 with numerous exhibits. (ECF No.195, PageID. 3307-3353). 

Argument

1. Nicoletti’s Motion to Vacate should be dismissed

because it is premature.

The Sixth Circuit “adopt[ed] the rule espoused by multiple Circuits that in 

the absence of extraordinary circumstances, a district court is precluded from 

considering a § 2255 application for relief during the pendency of the applicant's 

direct appeal.” Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir.1998) (collecting 

cases); see also Smith v. United States, No. 95–3980, 1996 WL 330864, at *1 (6th 

Cir. June 14, 1996) (“It is true that the ‘well established general rule is that, absent 

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extraordinary circumstances, the district court should not consider § 2255 motions 

while a direct appeal is pending.’” (citation omitted)); United States v. Robinson, 

8 F.3d 398, 405 (7th Cir.1993) (collecting cases); R. Governing § 2255 

Proceedings 5 advisory committee's note (although “there is no jurisdictional bar to 

the District Court's entertaining a Section 2255 motion during the pendency of a 

direct appeal[,] ... the orderly administration of criminal law precludes considering 

such a motion absent extraordinary circumstances”). This rule is grounded in the 

principle, oft repeated, that “[a]n application under § 2255 is an extraordinary 

remedy and should not be considered a substitute for direct appeal,” as well as

judicial economy, in that “determination of the direct appeal may render collateral 

attack by way of a § 2255 application unnecessary.” Capaldi, 135 F.3d at 1124; see 

also Robinson, 8 F.3d at 405 (“The rationale for the rule is a sound one: the 

disposition of the appeal may render the § 2255 motion moot.” Moreover, “[t]his 

rule holds true even for claims of ineffective assistance of counsel, which may 

normally not be brought on direct appeal.” Smith, 1996 WL 330864, at *1; see also

Robinson, 8 F.3d at 405 (“ Section 2255 motions, involving ineffective assistance 

of counsel claims, are subject to the same general rule as all other § 2255 motions; 

they are not to be entertained by the district court unless extraordinary 

circumstances are present.”).

Various judges in this Circuit and district have applied the “Calpaldi rule” to 

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dismiss 2255 petitions filed while the applicants’ cases were on direct appeal. See, 

e.g., United States v Wright, No. 6:17-cr-43-REW-3, 2019 WL 4863488 (E.D. 

Kentucky July 11, 2019, Wier, J.); United States v. Jones, No. 1:13-cr-7, 2014 WL 

1292503128 U.S.C. § 2255 (W.D. Michigan November 14, 2014, Neff, J.); United 

States v. Hills, No. 12-12254, 2014 WL 1400815 (E.D. Michigan April 9, 2014, 

Cox, J.); United States v. Rogers, No. 11-20749, 2014 WL117317 (E.D. Michigan 

January 13, 2014, Zatkoff, J.).

Nicoletti offers no “extraordinary circumstances” which would warrant any 

exception to this general rule. Indeed, he fails to even address it. Thus, under the 

Capaldi rule, the present motion should be dismissed as premature. Should the 

United States prevail on direct appeal, Nicoletti would be free to refile a petition 

under 28 U.S.C. § 2255 at that time.

2. Nicoletti’s Motion to Vacate should be dismissed

because it was filed pro se while Nicoletti was fully 

represented by counsel.

Nicoletti has counsel of record, Paul J. Stablein, in this Court, who has 

represented him at sentencing and in various post-judgment proceedings pertaining 

to Nicoletti’s sentence and surrender date. Mr. Stablein has never withdrawn and 

is, in fact, endeavoring to arrange yet another extension of Nicoletti’s Bureau of 

Prisons report date with the government. Nicoletti also has counsel representing 

him in the Sixth Circuit Court of Appeals in matters of both his direct appeal, as 

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well as a pending motion for bond pending appeal. Nicoletti has never formally 

sought to represent himself in his own defense in this court and, thus, no Faretta

colloquy was ever undertaken, and the Court has never formally passed on 

Nicoletti’s competence to represent himself in this case. Thus, Nicoletti is 

attempting to proceed in a “hybrid” fashion, both through his counsel and pro se by 

way of this motion. See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984). 

(Although the Sixth Amendment guarantees defendants the right to conduct their 

own defense and even represent themselves, the right of self-representation does 

not include the right to proceed in a hybrid manner). See also, United States v. 

Mosely, 810 F.2d 93, 97–98 (6th Cir.1987) (hybrid representation properly 

disallowed in a trial setting for a defendant who was both a lawyer and a judge).

Nicoletti is aware of this Court’s rule against hybrid representation, as he 

had previously been directly admonished about it, and this Court struck several of 

his pro se pleadings from the record, in part, for that reason. See, ECF No.87, 

PageID. 833: Order Striking Motions). While Nicoletti is fully represented, this 

Court should not accept pro se pleadings, and his Motion to Vacate should be no 

exception.

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Conclusion

Nicoletti’s motion to vacate under 28 U.S.C. § 2255 should be dismissed

because it was filed prematurely and because it was filed pro se while defendant 

was fully represented by counsel. Either reason would fully justify dismissal. At 

the very least, in the interest of judicial economy, this Court should defer 

consideration and scheduling of that motion until such time as the court of appeals 

rules on his pending appeal.

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 12, 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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