United States v. Sullivan

• Court: District Court, District of Columbia
• Decided: October 24, 2024
• Docket: Criminal No. 2021-0078
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Case No. 21-cr-78-RCL

JOHN EARLE SULLIVAN,

Defendant.

MEMORANDUM ORDER

On November 17, 2023, a jury convicted John Earle Sullivan on seven counts, five of which

are felonies, related to his participation in the Capitol riots of January 6, 2021. See Verdict Form,

ECF No. 126; Superseding Indictment, ECF No. 26. On April 26, 2023, this Court sentenced Mr.

Sullivan to seventy-two months of incarceration. See Judgment 1–3, ECF No. 153. On May 5,

2024, Mr. Sullivan appealed his conviction. Notice of Appeal, ECF No. 156. That appeal is now

pending before the United States Court of Appeals for the D.C. Circuit. During the pendency of

Mr. Sullivan’s appeal, in Fischer v. United States, 144 S. Ct. 2176 (2024), the Supreme Court

articulated a narrow interpretation of 18 U.S.C. § 1512(c), one of the felony statutes under which

Mr. Sullivan was convicted and sentenced.

In light of the Fischer decision, and pursuant to 28 U.S.C. § 2255(a), Mr. Sullivan now

asks this Court to release him from custody, vacate his conviction under Section 1512, and

resentence him accordingly. See Mot. to Vacate Under 28 U.S.C. 2255, ECF No. 159. The

Government has moved to hold Mr. Sullivan’s motion in abeyance pending the outcome of his

direct appeal. See Mot. to Hold in Abeyance, ECF No. 161. Because Mr. Sullivan has the

opportunity to dispute his Section 1512 conviction and sentence during his still-pending direct

appeal, and because Mr. Sullivan has shown no compelling reason to entertain a collateral attack

1 on his sentence during the pendency of this appeal, his Motion is DENIED. The Government’s

Motion, in turn, will be DENIED AS MOOT.

Although “there is no jurisdictional bar to [a] District Court[] 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.” United States v. Simms,

No. 06-cr-268-RJL, 2009 WL 3514826, at *1 (D.D.C. Oct. 29, 2009) (quoting Womack v. United

States, 395 F.2d 630, 631 (D.C. Cir. 1968). This rule embodies the intuition that judicial economy

and finality counsel strongly against simultaneously litigating the same issues in both the trial and

appellate forum. Id. (“[D]etermination of the direct appeal may render collateral attack

unnecessary.”) (quoting Womack, 395 F.3d at 631). It also encourages adherence to the basic

structural design of our judicial system, in which appeal is the norm and collateral attack the

exception. Id. (describing a Section 2255 motion as “an extraordinary remedy and not a substitute

for a direct appeal”) (quoting Womack, 395 F.2d at 631); see also Bousley v. United States, 523

U.S. 614, 621 (1998) (noting, in the context of a Section 2255 motion, that “[h]abeas review is an

extraordinary remedy and ‘will not be allowed to do service for an appeal’”) (quoting Reed v.

Farley, 512 U.S. 339, 354 (1994)) (internal quotations omitted).

Mr. Sullivan makes no attempt to argue that his circumstances are extraordinary in any

sense of the word. His Motion merely recites the facts of his conviction and the outcome of

Fischer. See generally Mot. to Vacate Under 28 U.S.C. 2255. He does not contend that his

pending appeal is an inadequate vehicle with which to argue the invalidity of his Section 1512

conviction. Indeed, his brief in that appeal is not due until December 9, 2024, affording Mr.

Sullivan ample opportunity to argue that point if he was not already planning to do so. See

Scheduling Order, United States v. Sullivan, No. 24-3051 (D.C. Cir. Oct. 7, 2024). To the extent