United States District Court, D. Connecticut
ORDER DISMISSING MOTION FOR POST-CONVICTION RELIEF
Jeffrey Alker Meyer United States District Judge.
Chavez has moved for post-conviction relief pursuant to 28
U.S.C. § 2255 at the same time that his direct appeal
from his conviction is pending. I conclude that the best way
forward in this case is to dismiss the section 2255 motion
without prejudice to its renewal either after the direct
appeal is decided or before that time, provided it is
accompanied by a statement from Chavez expressly requesting
that I adjudicate the motion prior to the determination of
January 11, 2017, the Court sentenced Raul Chavez to a term
of 144 months of imprisonment following his conviction after
a guilty plea on a charge of conspiracy to possess with
intent to distribute five kilograms or more of cocaine.
See United States v. Chavez, No. 3:14-cr-185-JAM-1,
Doc. #489 (D. Conn. Jan. 13, 2017); see also United
States v. Chavez, 2015 WL 1650838 (D. Conn. 2015)
(describing background facts).
letter dated January 17, 2017, Chavez filed a notice of
appeal from his conviction. See Chavez, No.
3:14-cr-185-JAM-1, Doc. #504. The Second Circuit's docket
reflects that on February 27, 2017, the Second Circuit
granted the motion of Chavez's retained trial counsel-
Attorney Scott Gleason-to be relieved on the ground that
Chavez no longer wanted Gleason to represent him. See
United States v. Chavez, No. 17-264, Doc. #15, 16 (2d
Cir. 2017). The Second Circuit's order directed Chavez to
advise whether he had retained new counsel, whether he wished
to proceed pro se, or whether he desired the Court
to appoint counsel pursuant to the Criminal Justice Act of
1964. Chavez, No. 17-264, Doc. #16. Although Chavez
subsequently filed a request for appointment of counsel, the
Second Circuit entered an order on May 8, 2017, striking his
request from the docket because it did not comply with the
Court's prescribed filing requirements. Chavez,
No. 17-264, Doc. #28. The Second Circuit also entered an
order on April 17, 2017, advising that Chavez's
submission was overdue and that his appeal would be dismissed
effective May 5, 2017, if he had not responded in the proper
form by that date. Chavez, No. 17-264, Doc. #25.
did not respond to these directives, and his appeal remained
in appellate purgatory without activity for nearly two more
years on the Second Circuit's docket. At last, on April
18, 2019, the Government moved to dismiss the appeal on
grounds of Chavez's failure to prosecute.
Chavez, No. 17-264, Doc. #44. Chavez did not oppose
or respond to this motion, but the Second Circuit denied the
motion on August 8, 2019, and directed the Clerk of Court to
appoint counsel for Chavez unless he advised within 30 days
that he wished to proceed pro se. Chavez,
No. 17-264, Doc. #55.
meantime, on March 1, 2019, Chavez filed before me the
instant pro se motion for post-conviction relief
pursuant to 28 U.S.C. § 2255. Doc. #1. He claims in
principal part that his counsel rendered constitutionally
ineffective assistance of counsel. Ibid. On April
19, 2019, the Government filed an opposition to the motion.
Doc. #5. Chavez has not filed any reply or other response to
the Government's submission.
federal district court has discretion to dismiss a
prisoner's section 2255 motion without prejudice as
premature if it is filed while a direct appeal is pending.
See United States v. Jiau, 536 Fed.Appx. 140, 141-42
(2d Cir. 2013). Dismissal is appropriate not because there is
an outright jurisdictional bar to a district court's
consideration of a section 2255 motion while a direct appeal
is pending, but for reasons of judicial economy because a
direct appeal may moot or nullify grounds for a district
court's ruling on a section 2255 motion. See United
States v. Outen, 286 F.3d 622, 632 (2d Cir. 2002);
Castillo v. United States, 2017 WL 2297016 (S.D.N.Y.
without prejudice may well be in a prisoner's interest.
Because the law generally limits a prisoner to only one
section 2255 motion, see 28 U.S.C. § 2255(h),
the prisoner may place himself at a disadvantage by
litigating matters in a section 2255 motion prior to knowing
the outcome of his appeal and when additional grounds for
relief or a change in law may also become apparent in the
interim. If the prisoner awaits the outcome of the appeal, he
may seek leave to amend his section 2255 motion to the extent
that there emerge other potential grounds for relief.
other hand, a prisoner may believe his best chance for speedy
and effective relief is by way of a section 2255 motion,
rather than waiting out the potentially lengthy time for an
appeal to be decided. Such circumstances may convince a
prisoner to seek to forego any possible benefit from knowing
the outcome of his direct appeal before pressing forward with
his section 2255 motion.
balance, I conclude that it would be premature for me to
adjudicate Chavez's section 2255 motion while the direct
appeal remains pending unless Chavez expressly requests that
I adjudicate his motion before the direct appeal is decided.
If he does so, he should make clear why he prefers an early
adjudication of his section 2255 motion and why judicial
economy and the interests of justice would favor early
adjudication of his section 2255 motion. Now that Chavez will
soon have counsel appointed to represent him for purposes of
his direct appeal, he should consult with this counsel about
what course of action would best serve his
the foregoing reasons, the Court DISMISSES without prejudice
Chavez's motion for post-conviction relief. The Clerk of
Court shall administratively close this case subject to
Chavez's filing of a motion to reopen. The case shall be
re-opened at such time that Chavez files a request for the
Court to adjudicate his motion, whether prior to the
conclusion of his direct appeal or afterwards. Because Chavez
cannot make a substantial showing that the Court's
interim disposition of ...