THURMOND v. United States

Background

Tyrone Thurmond, who is incarcerated at USP Canaan and representing himself, filed a civil action challenging his federal conviction and sentence. He initially filed a petition under 28 U.S.C. § 2241 in the Eastern District of Pennsylvania. That court transferred the action to the Southern District of New York after concluding that a challenge to a conviction or sentence issued by that court must generally be brought under 28 U.S.C. § 2255.

The challenged conviction and sentence arose in United States v. Thurmond, No. 20-CR-504-2 (KMW). The opinion states that Thurmond pleaded guilty to causing another person to possess ammunition after that person had been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). On December 6, 2023, the court sentenced him to 120 months in prison followed by two years of supervised release. His direct appeal, No. 23-8113 in the Second Circuit, was still pending.

Court’s analysis

Because Thurmond was challenging his federal conviction or sentence, the court construed his § 2241 petition as a motion to vacate, set aside, or correct his sentence under § 2255. The court explained that the motion was premature while the direct appeal remained pending. Although a court may address a § 2255 motion during a pending appeal, this court declined to do so because considering the same issues in two courts could cause confusion or waste judicial resources, and the appeal could make the district court’s decision irrelevant.

The court also explained that it did not need to give Thurmond an opportunity to withdraw the filing before treating it as a § 2255 motion. The usual notice requirement protects a person from unintentionally using up restrictions on later § 2255 motions. Here, however, the court’s denial of § 2255 relief without prejudice did not trigger those restrictions.

Disposition

The court denied Thurmond’s § 2241 motion, construed as a § 2255 motion, without prejudice as premature. The order states that Thurmond may file a § 2255 motion after his direct appeal has been adjudicated. The court declined to issue a certificate of appealability because Thurmond had not made a substantial showing that a constitutional right was denied. It also certified that an appeal would not be taken in good faith and therefore ruled that Thurmond could not proceed without paying the appeal filing fee. The clerk was directed to close the pending motion and mail Thurmond a copy of the order.