United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
Donald Lee Cohee has filed a Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255 (Doc. 109); a
Motion for Leave to Proceed in forma pauperis (Doc. 110); and
a "Motion to Overturn Sentence of Wrongfully
Sentence" (Doc. 111). For reasons explained below, the
court denies Mr. Cohee's Motion for Leave to Proceed in
forma pauperis as moot. The court also denies Mr. Cohee's
other two motions, but without prejudice.
30, 2014, Mr. Cohee pleaded guilty to one count of failing to
register as a sexual offender, violating 18 U.S.C. §
2250(a) and 42 U.S.C. § 16901. Doc. 29. The court
sentenced him on October 20, 2014, to 24 months in custody
and five years of supervised release. Doc. 33 at 2-3. The
judgment included Standard Conditions of Supervision. Id.
at 3. One of those conditions prohibited Mr. Cohee from
possessing, purchasing, or using any controlled substance
except as prescribed by a physician. Id.
April 19, 2017, Mr. Cohee admitted to violating mandatory
conditions of his supervised release-specifically, failing to
refrain from drug use. Doc. 99. Based on this violation, the
court sentenced Mr. Cohee to 11 months' imprisonment.
Id. at 2. Through counsel, Mr. Cohee has filed a
Notice of Appeal. Doc. 100. Mr. Cohee's direct appeal
raises one issue-whether the court's imposition of a
special condition of supervised release that prohibits Mr.
Cohee from having unapproved and unsupervised contact with
minors, but does not include an exception for Mr. Cohee's
minor daughter, violates 18 U.S.C. § 3583(d)(2) or Mr.
Cohee's constitutional due process rights. The Tenth
Circuit has not yet issued an opinion in Mr. Cohee's
direct appeal. Mr. Cohee thus has filed his § 2255 motion
before his direct appeal has concluded.
Cohee's § 2255 motion asserts four grounds for
relief: (1) the court erred in concluding that he had used a
controlled substance because he ingested prescribed blood
pressure medication; (2) his probation officer never asked him
to identify the controlled substance he ingested; and (3) he
has depression. Doc. 109. Mr. Cohee also has filed a
"Motion to Overturn Sentence of Wrongfully
Sentence." Doc. 111. The court construes this filing as
a supplement to his § 2255 motion because it asserts the
same arguments. This motion asks the court to overturn Mr.
Cohee's revocation sentence because-he contends-no
violation of his probation conditions occurred.
court denies both of these motions as premature because Mr.
Cohee has filed a direct appeal that is currently pending
before the Tenth Circuit; the orderly administration of
justice precludes a district court from considering a §
2255 motion while the direct appeal is still pending; and Mr.
Cohee has shown no extraordinary circumstances to justify the
court's consideration of his § 2255 motion while his
direct appeal is pending. See, e.g., United States v.
Cook, 997 F.2d 1312, 1319 (10th Cir. 1993) ("Absent
extraordinary circumstances, the orderly administration of
criminal justice precludes a district court from considering
a § 2255 motion while review of the direct appeal is
still pending"); United States v. Hunter, 458
Fed.Appx. 732, 734 (10th Cir. 2012) (holding that the
district court properly denied a § 2255 motion as
premature because the defendant's direct appeal still was
pending); United States v. Williams, Nos.
08-20141-JWL, 14-2128-JWL, 2014 WL 2115423, at *1 (D. Kan.
May 21, 2014) (denying a § 2255 motion without prejudice
as premature because defendant's appeal still was pending
and defendant showed no extraordinary circumstances
justifying consideration of the motion). Also, the court
declines to issue a certificate of appealability because Mr.
Cohee has not made a substantial showing of the denial of a
constitutional right. See Hunter, 458 Fed.Appx. at
733 (citing 28 U.S.C. § 2253(c)(2)).
Mr. Cohee has filed a Motion for Leave to Proceed in forma
pauperis under 28 U.S.C. § 1915 (Doc. 110). Mr.
Cohee's Motion fails to include an affidavit describing
his assets as § 1915 requires. But, the court concludes
that Mr. Cohee need not comply with § 1915 here. The
Tenth Circuit has explained that "[r]equests for
representation in criminal matters, including direct criminal
appeals and the ancillary costs and fees attendant with an
appeal, fall under the standards and procedures set forth
under the Criminal Justice Act, 18 U.S.C. § 3006A,
rather than those set forth in 28 U.S.C. § 1915."
United States v. Osuna, 141 F.3d 1412, 1414 (10th
Cir. 1998). And, under the Criminal Justice Act, a person for
whom counsel was previously appointed may appeal
"without prepayment of fees and costs or security
therefore and without filing the affidavit required by §
1915(a) of Title 28." 18 U.S.C. § 3006A(d)(7).
Here, the court previously appointed counsel for Mr. Cohee
under 18 U.S.C. § 3006A. So, Mr. Cohee may proceed in
his direct criminal appeal without prepayment of fees and
costs or security and without filing the affidavit required
by 28 U.S.C. § 1915(a). The court thus denies as moot
Mr. Cohee's Motion for Leave to Proceed in forma
pauperis. See, e.g., United States v. Perry, No.
05-CR-101, 2007 WL 2209253, at *1 (E.D. Wise. July 27, 2007)
(denying motion to proceed in forma pauperis as moot because
the court previously had appointed counsel for defendant
under the CJA, thus authorizing defendant to appeal without
prepayment of fees and costs (citing 18 U.S.C. §
IS THEREFORE ORDERED BY THE COURT THAT defendant
Donald Lee Cohee's Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255 (Doc. 109) is
denied without prejudice. The court also denies a certificate
IS FURTHER ORDERED THAT defendant Donald Lee
Cohee's Motion for Leave to Proceed in forma pauperis
(Doc. 110) is denied as moot.
IS FURTHER ORDERED THAT defendant Donald Lee
Cohee's "Motion to Overturn Sentence of Wrongfully
Sentence" (Doc. 111) is denied without prejudice.
IS SO ORDERED.
 Although counsel currently represents
Mr. Cohee in his direct appeal, Mr. Cohee has filed the
pending motions pro se. The court normally refuses to
consider a represented defendant's submissions when he
has not processed them through his counsel. See,
e.g., Docs. 61, 68. But, here, the court considers Mr.
Cohee's motions to explain why the relief he seeks is
premature. See United States v. Hunter, 466
Fed.Appx. 706, 707 (10th Cir. 2012) (vacating a district
court order striking a defendant's pro se § 2255
motion because he was represented by counsel and concluding
that the district court lacked of jurisdiction because it was
an unauthorized second or successive § 2255 motion).
Also, because Mr. Cohee files his motion pro se, the ...