holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue
How later courts described this case
- holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue
Written by the judges who cited it.
The opinion
USDC SDNY
DOCUMENT
UNITED STATES DISTRICT COURT Bibs, EDGE
SOUTHERN DISTRICT OF NEW YORK DOCH
DATE FILED: __ 12/3/2020
LAWRENCE BROWN,
Movant, 20-CV- 10067 (NSR)
. 14-CR-00509-1 (NSR)
-against-
ORDER DENYING MOTION UNDER
UNITED STATES OF AMERICA, 28 U.S.C. § 2255
Respondent.
NELSON S. ROMAN, United States District Judge:
Movant Lawrence Brown, appearing pro se, and currently incarcerated in F.C.I. Ray
Brook, filed this motion under 28 U.S.C. § 2255, challenging his conviction and sentence. See
United States v. Brown, ECF 7:14-CR-00509-1, 72 (NSR) (S.D.N.Y. Feb. 8, 2018) (convicting
Movant of two counts of robbery and brandishing a firearm in furtherance of committing a crime
of violence, and sentencing him to prison terms totaling 468 months). The Second Circuit
affirmed the conviction, but remanded for resentencing. See United States v. Brown, 18-434 (2d
Cir. Sept. 6, 2019) (citing Dean v. United States, 137 S. Ct. 1170 (2017), “remanding for
clarification” as to whether the sentencing court was aware of its discretion to consider the
severity of mandatory consecutive minimum sentences required by 18 U.S.C. § 924(c) in
determining sentences for underlying predicate offenses). The Court resentenced Movant to 303
months in prison. ECF 7:14-CR-00509-1, 88 (S.D.N.Y. Dec. 13, 2019), appeal pending, 19-4317
(2d Cir.).
Because Movant’s direct appeal is pending, the Court denies the present § 2255 motion
without prejudice as premature. The Court recognizes that it is not, strictly speaking, prohibited
from adjudicating this motion while Movant’s direct appeal is pending. See United States v.
Outen, 286 F.3d 622, 632 (2d Cir. 2002). But it is in the interest of judicial economy “to avoid
confusion or waste of time resulting from having the same issues before two courts at the same
time.” United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996) (internal quotation marks and
citation omitted). The same judicial economy concerns animate the Court’s aversion to
expending its already scarce resources to reach a decision that could be rendered a “nullity” by
the results of Movant’s direct appeal. Outen, 286 F.3d at 632.
Because Movant’s direct appeal is pending, his present motion is premature. The Court
therefore denies the motion without prejudice.
CONCLUSION
The Court denies the present motion under 28 U.S.C. § 2255 without prejudice as
premature.
Because the present motion makes no substantial showing of a denial of a constitutional
right, a certificate of appealability will not issue. See 28 U.S.C. § 2253.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an
appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant
demonstrates good faith when he seeks review of a nonfrivolous issue).
The Clerk of Court is directed to terminate the motion at 14-cr-509-1 ECF No. 97 and to
mail a copy of this order to pro se Plaintiff at the address on ECF and to show service on the
docket.
SO ORDERED.
Dated: December 3, 2020
White Plains, New York
NELSONS.ROMAN
United States District Judge