United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
the court is the government’s Motion for Clarification,
for Stay of Proceedings, and in the alternative, for
Extension of Time (ECF No. 1738). Defendant’s pro se
Motions to Vacate, Set Aside or Correct the Sentence under 28
U.S.C. § 2255 (ECF Nos. 1706 and 1717) have been
referred to the undersigned by the presiding U.S. District
Judge. See ECF No. 1737. For the reasons that
follow, the undersigned recommends that the §2255
motions be stricken. The government’s motion is
therefore denied as moot.
Hoang Ai Le and others were charged by indictment with
offenses including conspiracy to commit Hobbs Act robbery in
violation of 18 U.S.C. § 1951(a) (Count 8), and using a
firearm to commit a crime of violence in violation of 18
U.S.C. § 924(c)(1) (Count 2). On March 8, 2010,
defendant was sentenced to a total aggregate sentence of 340
months. On appeal the Ninth Circuit affirmed in part and
reversed in part, remanding with instructions to vacate the
convictions and consecutive sentences on Count 2, which was
based on conduct also included in Count 3. The convictions
and sentences on all other counts were affirmed. ECF No.
remand, two of Mr. Le’s co-defendants moved for
dismissal of all counts charged under § 924(c), pursuant
to United States v. Johnson, 135 S.Ct. 2551 (2015)
(holding 18 U.S.C. § 924(e), the residual clause of the
Armed Career Criminal Act (ACCA), facially void for
vagueness). The defendants’ motion was granted, ECF No.
1659, and the government’s motion for reconsideration
was denied, ECF No. 1668. The government then appealed, ECF
No. 1670, and the case was stayed as to defendants Minh Huynh
and Thongsouk Theng Lattanaphon only. ECF No. 1671.
March 2, 2016, attorney Arthur Pirelli was appointed to
represent defendant Le “for Johnson matters,
further proceedings in district court, and any resulting
appeal.” ECF No. 1677. On March 29, 2016, defendant Le,
though counsel, moved to dismiss Count 9 (charging violation
of § 924(c)) pursuant to Johnson. The motion
was denied without prejudice. ECF No. 1696. The district
judge ruled that the motion was outside the scope of remand
as to Mr. Le, and therefore could not be considered.
Id. The court “expresse[d] no opinion as to
the merits of Le’s claim should he decide to file a
habeas petition.” Id. at 2. Defendant appealed
the ruling. ECF No. 1699.
after counsel filed Mr. Le’s Notice of Appeal, the
Clerk’s Office docketed a pro se “Motion to Adopt
or Join All Co-Defendants Motions to Dismiss All 18 U.S.C.
§ 924(c) Counts.” ECF No. 1705. That motion was
denied for the same reasons that the previous
Johnson motion, brought by counsel, had been denied.
ECF No. 1709. Two pro se § 2255 motions followed, both
of which present Johnson claims only. ECF Nos. 1706,
government seeks a stay of these § 2255 proceedings in
light of defendant’s pending appeal of the district
court’s denial of his motion to dismiss Count 9. The
Ninth Circuit has repeatedly noted that “a district
court should not entertain a habeas corpus petition while
there is an appeal pending.” United States v.
Deeb, 944 F.2d 545, 548 (9th Cir. 1991) (quoting
Feldman v. Henman, 815 F.2d 1318 (9th Cir. 1987)).
This rule serves the interest of judicial economy. See
Black v. United States, 269 F.2d 38, 41 (9th Cir. 1959).
While a district court possesses the authority to entertain a
section 2255 motion while a defendant’s appeal is still
pending, the Ninth Circuit has made clear that this authority
should be exercised only in the “most unusual
circumstances.” Jack v. United States, 435
F.2d 317, 318 (9th Cir. 1970); see also United States v.
Taylor, 648 F.2d 565, 572 (9th Cir.) (“The
District Court may entertain a collateral motion during the
pendency of a direct appeal if ‘extraordinary
circumstances’ outweigh the considerations of
administrative convenience and judicial economy.”).
record here suggests no extraordinary or unusual
circumstances. Considerations of administrative convenience
and judicial economy weigh strongly in favor of awaiting
resolution of Mr. Le’s appeal before addressing any
collateral challenges to his conviction. A stay, however, is
not necessary or appropriate in this case. A stay would hold
proceedings in abeyance pending appeal, while leaving the
§ 2255 petition(s) on the docket for resumed proceedings
upon resolution of the appeal. Here, Mr. Le’s pro se
§ 2255 petitions are not properly filed and should be
stricken regardless of the status of his appeal.
is represented by appointed counsel for all matters related
to the validity of his § 924 convictions under
Johnson. ECF No. 1677. “A criminal defendant
does not have the right to simultaneous self-representation
and the assistance of counsel.” United
States v. Bergman, 813 F.2d 1027, 1030 (9th Cir.)
(emphasis in original); see also United States v.
Olano, 62 F.3d 1180, 1193 (9th Cir. 1995) (holding that
a criminal defendant does not have the right to proceed pro
se when represented by counsel). “Whether to allow
hybrid representation, where the accused assumes some of the
lawyer’s functions, is within the sound discretion of
the judge.” United States v. Williams, 791
F.2d 1383, 1389 (9th Cir. 1986) (citation omitted).
filing substantive pleadings pro se, defendant has engaged in
hybrid representation without prior authorization.
Consideration of pro se motions in this case, in light of the
important but narrow legal issues presented and the
procedural complexity of the case, would defeat the purpose
of appointment of counsel and unduly burden the court.
Accordingly, the court should strike the pro se motions and
direct defendant to refrain from further pro se filings
seeking relief under Johnson. See Abdullah v.
United States, 240 F.3d 683, 686 (8th Cir. 2001)
(“A district court has no obligation to entertain pro
se motions filed by a represented party.”); United
States v. Tracy, 989 F.2d 1279, 1285 (1st Cir. 1993)
(“A district court enjoys wide latitude in managing its
docket and can require represented parties to present motions
Pirelli remains defendant’s appointed counsel for all
Johnson-related matters until he is relieved by the
court. Accordingly, all Johnson-related motions and
pleadings should be filed through counsel. Striking
defendant’s pro se motions will have no effect on