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 Renewed Motion to Dismiss or Defer Defendant’s

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

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

as premature Defendant’s Motion to Vacate or, in the alternative, defer 

consideration and extend the government’s response date until July 30, 2021,

because of Defendant’s decision to seek rehearing en banc in the Sixth Circuit 

Court of Appeals, and for the other reasons set forth in the supporting brief.

Respectfully submitted,

Saima S. Mohsin

Acting United States Attorney

s/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. 205, PageID.3398 Filed 04/14/21 Page 1 of 14
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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 Renewed 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

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Table of Contents

Index of Authorities ........................................................................................ iv

Controlling Authorities..................................................................................... iv

Statement of the Issue ....................................................................................... iv

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

Relevant Chronology/Facts............................................................................... 1 

Argument........................................................................................................... 4

1. Nicoletti’s Motion to Vacate is premature...............................4

2. Nicoletti’s pro se motion should not be considered where he is 

represented by counsel......................................................7

3. Alternatively, consideration of Nicoletti’s Motion should be 

deferred and the government’s response date extended to 

July 30, 2021.................................................................8

Conclusion ........................................................................................................ 9

Certificate of Service ........................................................................................ 10

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Index of Authorities

McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) ............................................ 7

Capaldi v. Pontesso, 135 F.3d 1122 (6th Cir.1998) ........................................ 4-6

United States v. Hills, No. 12-12254, 2014 WL 1400815 

(E.D. Michigan 2014) ..................................................................................... 6

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

(W.D. Michigan 2014) .................................................................................... 6

United States v. Mosely, 810 F.2d 93, 97–98 (6th Cir.1987) ......................... 7

United States v. Robinson, 8 F.3d 398, 405 (7th Cir.1993) ............................ 5

United States v. Rogers, No. 11-20749, 2014 WL117317 

(E.D. Michigan 2014) ..................................................................................... 6

Smith v. United States, No. 95–3980, 1996 WL 330864 

(6th Cir. June 14, 1996) .................................................................................. 5

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

(E.D. Kentucky 2019) ..................................................................................... 6

28 U.S.C. § 2255............................................................................................... 1

Controlling Authorities

Capaldi v. Pontesso, 135 F.3d 1122 (6th Cir.1998) ........................................ 4-6

28 U.S.C. § 2255............................................................................................... 1

Statement of the Issue

Should the Court dismiss or defer consideration of Nicoletti’s Motion to 

Vacate under 28 U.S.C. § 2255 while his case is on direct appeal?

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Introduction and Procedural Posture

Nicoletti improperly filed his Motion to Vacate while this case was on direct 

appeal and the government moved to dismiss it. Shortly after the government’s 

motion was filed, the Court of Appeals unanimously affirmed his conviction. 

Because Nicoletti’s appeal appeared to have been concluded by this decision, this

Court denied the government’s motion as moot. But Nicoletti has since decided to 

petition the Court of Appeals for rehearing en banc, and he sought and received an 

extension to file that petition. Because his direct appeal thus remains active and 

open in the Sixth Circuit Court of Appeals, the United States respectfully renews 

its motion to dismiss Nicoletti’s Motion to Vacate. Alternatively, the government 

asks that the Court defer consideration of that motion, and extend the government’s 

response date to July 30, 2021.

Relevant Chronology and Facts

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

2021 (ECF No. 195) while the case was on direct appeal. (United States v. Paul 

Nicoletti, No. 20-1137 (6th Cir.)). He filed the motion pro se, although represented 

by counsel both in this Court and in the Court of Appeals. (See, ECF. No. 200: 

Government’s Motion to Dismiss or Defer Defendant’s Motion to Vacate). On 

March 11, 2021, this Court ordered that the government respond to the Motion to 

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Vacate by March 19, 2021. (Docket Entry for March 11, 20021). On March 12, 

2021, the government filed its Motion to Dismiss or Defer Defendant’s Motion to 

Vacate, arguing that it was improperly filed because it was filed while the case was 

on direct appeal and because it was filed pro se while Nicoletti was represented. 

(ECF No. 200: Motion). On March 18, 2021, a panel of the Court of Appeals 

unanimously affirmed Nicoletti’s conviction. (United States v. Paul Nicoletti, No. 

20-1137, Doc.#48-2 (6th Cir.)). Because it appeared that the Court of Appeals case 

was final, this Court, on March 19, 2021, entered an order denying the 

government’s motion to dismiss as moot but, recognizing the need for additional 

time, granted the government’s motion to revise the briefing schedule, requiring a 

response by May 18, 2021 (ECF No. 203, PageID. 3393-94).

On March 29, 2021, the government learned from Nicoletti’s appellate 

counsel, Tyler Yarbro, that Nicoletti would be filing a Petition for Rehearing En 

Banc in the Court of Appeals and agreed to her request for an extension of the due 

date for filing such a petition from April 1, 2021 to May 3, 2021, which the Court 

of Appeals granted. (United States v. Paul Nicoletti, 20-1137, Doc.#50: Ruling 

Letter). This case thus remains on direct appeal until that petition is resolved. 

Nicoletti’s Motion to Vacate remains pending, however, and raises, among 

other things, issues of ineffective assistance of counsel by two of Nicoletti’s prior 

Case 2:15-cr-20382-VAR-MKM ECF No. 205, PageID.3403 Filed 04/14/21 Page 6 of 14
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counsel. The motion assigns numerous errors to his trial counsel and a previous 

attorney, specifically, the “failure” to issue trial subpoenas (ECF No. 195, PageID. 

3310-3311, ECF No. 195, PageID. 3319-3323), the failure to object to at least 70 

of the government’s proposed exhibits prior to trial (ECF No. 195, PageID. 3311; 

ECF No. 195, PageID. 3330-3331), the stipulation to admit government exhibits 

despite express instructions to the contrary (ECF No. 195, PageID. 3327-3329), the 

failure to object to at least 11 proposed jury instructions despite express email 

instructions (ECF No. 195, PageID. 3311; ECF No. 195, PageID. 3324), failure to 

object to the admission of audio tapes (ECF No. 195, PageID. 3313), failure to 

cross-examine a witness as Nicoletti desired (ECF No. 195, PageID. 3314), and 

refusal to present an audit report as evidence and cross examine witnesses with that 

report. (ECF No. 195, PageID. 3315). 

On March 30, 2021, the government contacted trial counsel and one of 

Nicoletti’s pretrial attorneys by email, who agreed to carefully review Nicoletti’s 

Motion to Vacate and meet with the undersigned Assistant United States Attorney 

thereafter about Nicoletti’s charges of ineffective assistance of counsel. Those 

meetings have yet to be scheduled. The nature of the allegations may require 

findings by the Court about attorney-client privilege waivers (in the absence of 

voluntary disclosure by defense counsel), the scope of such waivers, and, 

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potentially, an expansion of the record under Rule 7 of the Rules Governing 

Section 2255 Proceedings, all of which would require additional time to determine.

On March 30, 2012, the government sought concurrence in this motion from 

Nicoletti through his counsel, Paul Stablein, and on April 12, 2021, Mr. Stablein 

advised in an email that he does not represent Nicoletti in the Motion to Vacate, 

but that Nicoletti would not stipulate to any extension unless the government 

agreed to a series of conditions which it finds unacceptable. 

For the reasons set out in the government’s original Motion to Dismiss or 

Defer Defendant’s Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 200), much 

of which is reiterated here for the Court’s convenience, Nicoletti’s Motion to 

Vacate should be dismissed, or, in the alternative, deferred and the government’s 

response date delayed until July 30, 2021 in light of the nature and quantity of the 

allegations the motion contains. 

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 

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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 

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; 

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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 

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.).

There can be no doubt that this case remains on direct appeal in light of 

Nicoletti’s decision to petition for rehearing en banc and the Court of Appeals 

grant of additional time to file it. (United States v. Nicoletti ̧ No. 20-1137, Doc. 

No. 50: Ruling Letter). Nicoletti offers no “extraordinary circumstances” which 

would warrant any exception to the “Capaldi rule.” Thus, the present motion 

should be dismissed as premature. Should the Court of Appeals deny rehearing en 

banc, or affirm his conviction after rehearing, Nicoletti would be free to refile a 

petition under 28 U.S.C. § 2255.

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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 

has arranged numerous extensions of Nicoletti’s Bureau of Prisons report date with 

the government. Nicoletti also has appellate counsel while he pursues his direct 

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 selfrepresentation 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).

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Nicoletti was well 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.

3. Alternatively, due to the nature and quantity of 

the allegations in this case, the Court should grant 

the government’s request for an additional 60 

days to respond.

Even if the Court allows Nicoletti’s Motion to Vacate to stand, the 

government respectfully requests additional time to respond. As noted above, the 

motion accuses two of Nicoletti’s attorneys of ineffective assistance and raises 

over 80 claims of error in representation. Such allegations require careful review

and analysis, as well as input from accused counsel. They may also raise 

complicated questions pertaining to attorney-client privilege requiring guidance 

from the Court. In any event, given that Nicoletti’s Petition for Rehearing En Banc

is not even due until May 3, 2021, it seems highly unlikely that it will even be 

decided before May 18, 2021, the date by which the government’s response is 

currently due. Under all of these circumstances, rescheduling the response date to 

July 30, 2021 is prudent and reasonable. 

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Conclusion

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

Court deny, without prejudice, Nicoletti’s Motion to Vacate (ECF No. 195) or, in 

the alternative, defer consideration and revise its briefing schedule so as to require 

a response from the United States no earlier than July 30, 2021.

Respectfully submitted,

Saima S. Mohsin

Acing United States Attorney

s/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 

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 April 14, 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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