Olivo v. United States

Background

Nelson Olivo, who is incarcerated at FCI Schuylkill in Pennsylvania and is proceeding without a lawyer, filed a motion under 28 U.S.C. § 2255. That statute allows a person in federal custody to challenge a conviction or sentence on specified constitutional, legal, jurisdictional, or other collateral grounds. Olivo challenged his conviction and judgment in the related criminal case, 22-CR-0582-3 (VEC).

A jury convicted Olivo of conspiring to distribute and possess with intent to distribute controlled substances, in violation of 21 U.S.C. § 846. Judgment was entered on December 13, 2024. Olivo had already appealed the judgment to the United States Court of Appeals for the Second Circuit, and that appeal was pending when he filed the § 2255 motion.

Reasoning

The court explained that a defendant generally must pursue a direct appeal before bringing a § 2255 motion. A district court technically may consider such a motion while a direct appeal is pending, but doing so is generally appropriate only in extraordinary circumstances because the two proceedings could involve overlapping issues. The results of the appeal could also make the district court’s work on the § 2255 motion unnecessary.

Because Olivo’s direct appeal was pending, the court concluded that his § 2255 motion was premature. The court did not reach the merits of his challenge to the conviction or sentence.

Disposition

Judge Valerie E. Caproni denied the § 2255 motion without prejudice. The order states that Olivo may refile a § 2255 motion after the direct appeal is resolved if relief is still necessary.

The court also determined that the motion did not make a substantial showing that Olivo’s constitutional rights had been denied, so it directed that no certificate of appealability issue. In addition, under 28 U.S.C. § 1915(a)(3), the court certified that an appeal from the order would not be taken in good faith and denied permission to appeal without paying filing fees.