Lee v. United States

S.D. New York

Lee v. United States

DecidedOctober 20, 2022

Docket1:17-cv-08567

StatusUnknown

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Lee v. United States, (S.D.N.Y. 2022).

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Opinion

SER EEE EO United States Attorney Southern District of New York The Silvio J. Mollo Building One Saint Andrew’s Plaza New York, New York 10007 October 19, 2022 BY ECF Hon. Loretta A. Preska Daniel Patrick Moynihan United States Courthouse 500 Pearl St. New York, NY 10007-1312 Re: — United States v. Lee, et al., 07 Cr. 0003 (LAP) Hisan Lee v. United States, 17 Civ. 8567 (LAP) Dear Judge Preska: The Government respectfully requests a stay of the defendant’s motion to reconsider the Court’s opinion and order denying the defendant’s motion submitted pursuant to 28 U.S.C. § 2255 pending resolution of the defendant’s appeal in Lee v. United States, No. 22-1117 (2d Cir.). The Government’s opposition to the defendant’s motion to reconsider is currently due on October 24, 2022. On May 20, 2022, the defendant filed a notice of appeal from the Court’s denial of the Section 2255 motion. On September 13, 2022, because the defendant failed to timely file a motion for certificate of appealability, the Second Circuit dismissed the appeal and returned the mandate to this Court. Since then, however, the defendant has moved for a certificate of appealability in the Second Circuit, and as of October 18, 2022, the defendant moved to reinstate the appeal and recall the mandate, which the Second Circuit has determined cures the previously defective request for a certificate of appealability. Accordingly, the defendant is actively pursuing the appeal of the Court’s denial of his Section 2255 motion, despite having moved for reconsideration before this Court as of July 29, 2022. The Government respectfully requests that the Court, in its discretion, stay the defendant’s motion for reconsideration pending resolution of the defendant’s appeal, given both the appeal and the motion to reconsider seek review of the Court’s order denying the defendant’s Section 2255 motion. See United States v. Jiau, 536 F. App’x 140, 141 (2d Cir. 2013) (recognizing that “concerns for judicial economy generally counsel against adjudicating” Section 2255 motions during the pendency of a direct appeal).

SO ORDERED. Respectfully submitted, 4 Za YZ zl. DAMIAN WILLIAMS fA. United States Attorney 10/20/2022 by: s/ Cecilia E. Vogel Cecilia E. Vogel Assistant United States Attorney (212) 637-1084 ce: Hisan Lee, Pro Se (by certified mail)

AFFIRMATION OF SERVICE

I, Cecilia E. Vogel, affirm under penalty of perjury as follows:

1. I am an Assistant United States Attorney in the Southern District of New York.

2. On October 19, 2022, I caused a copy of the foregoing to be served on the defendant via U.S. mail at the following address:

Hisan Lee ID No. 59908-054 USP Big Sandy P.O. Box 2068 Inez, KY 41224

Dated: New York, New York October 19, 2022

s/ Cecilia E. Vogel Cecilia E. Vogel Assistant United States Attorney

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SER EEE EO United States Attorney Southern District of New York The Silvio J. Mollo Building One Saint Andrew’s Plaza New York, New York 10007 October 19, 2022 BY ECF Hon. Loretta A. Preska Daniel Patrick Moynihan United States Courthouse 500 Pearl St. New York, NY 10007-1312 Re: — United States v. Lee, et al., 07 Cr. 0003 (LAP) Hisan Lee v. United States, 17 Civ. 8567 (LAP) Dear Judge Preska: The Government respectfully requests a stay of the defendant’s motion to reconsider the Court’s opinion and order denying the defendant’s motion submitted pursuant to 28 U.S.C. § 2255 pending resolution of the defendant’s appeal in Lee v. United States, No. 22-1117 (2d Cir.). The Government’s opposition to the defendant’s motion to reconsider is currently due on October 24, 2022. On May 20, 2022, the defendant filed a notice of appeal from the Court’s denial of the Section 2255 motion. On September 13, 2022, because the defendant failed to timely file a motion for certificate of appealability, the Second Circuit dismissed the appeal and returned the mandate to this Court. Since then, however, the defendant has moved for a certificate of appealability in the Second Circuit, and as of October 18, 2022, the defendant moved to reinstate the appeal and recall the mandate, which the Second Circuit has determined cures the previously defective request for a certificate of appealability. Accordingly, the defendant is actively pursuing the appeal of the Court’s denial of his Section 2255 motion, despite having moved for reconsideration before this Court as of July 29, 2022. The Government respectfully requests that the Court, in its discretion, stay the defendant’s motion for reconsideration pending resolution of the defendant’s appeal, given both the appeal and the motion to reconsider seek review of the Court’s order denying the defendant’s Section 2255 motion. See United States v. Jiau, 536 F. App’x 140, 141 (2d Cir. 2013) (recognizing that “concerns for judicial economy generally counsel against adjudicating” Section 2255 motions during the pendency of a direct appeal).