Opinion
No.: 3:05-CR-112-TAV-CCS-1 No.: 3:16-CV-268-TAV
01-09-2017
MELVIN E. DAVIS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
On May 26, 2016, Petitioner filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 169, 171]. On February 11, 2016, this Court appointed Federal Defender Services of Eastern Tennessee (FDSET) to investigate Petitioner's case to determine whether or not he was entitled to collateral relief. E.D. Tenn. S.O. 16-02 (Feb. 11, 2016). Consistent with that appointment, FDSET filed a supplement in support of the original pro se petition [Doc. 175]. Both the petition and supplement challenge the propriety of his career offender designation under Section 4B1.1 of the United States Sentencing Guidelines in light of the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015) [Id.]. The request implicitly relies on Pawlak v. United States—in which the Sixth Circuit cited Johnson's invalidation of the Armed Career Criminal Act's ("ACCA") residual clause as the basis for invalidating Section 4B1.2(a)(2)'s parallel provision, 822 F.3d 902, 911 (6th Cir. 2016) [Id. (suggesting that Petitioner's Tennessee aggravated assault and facilitation of second-degree murder convictions are no longer crimes of violence)].
On August 12, 2016, the United States responded with the suggestion that Petitioner's entitlement to collateral relief depends on whether or not Johnson's impact on the Guidelines has been made retroactively applicable to cases raised in the context of collateral review [Doc. 176 p. 2]. Noting that the Supreme Court has agreed to address this very issue next term in Beckles v. United States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016), the United States requests that the Court stay its resolution of the instant petition pending that decision [Id. at 2-3].
In a recent published opinion, the Sixth Circuit recognized that "it is not clear whether to treat Pawlak as a new rule that the Supreme Court has not yet made retroactive [to cases on collateral review] or as a rule dictated by Johnson that the Supreme Court has made retroactive." In re Embry, No. 16-5447, 2016 WL 4056056, at *1 (6th Cir. July 29, 2016). While district courts are generally responsible for deciding, in the first instance, whether "Pawlak is a new rule or not," Id. at *4, multiple Sixth Circuit opinions have endorsed holding petitions similar to the instant one "in abeyance pending the Supreme Court's decision in Beckles," Id. at *4; see also In re Patrick, No. 16-5353, 2016 WL 4254929, at *4 (6th Cir. Aug. 12, 2016). The justification for doing so is that, "[a]fter . . . [Beckles], the district courts will be well positioned to handle [Johnson-based challenges to the Guidelines] fairly and efficiently." In re Embry, 2016 WL 4056056, at *4. The propriety of such a stay is further reinforced by the fact that at least two panels from the Sixth Circuit have adopted contrasting predictions for what the Beckles decision will hold. Compare Id. at *4 ("If pressed to decide the question now, we would lean in favor of saying that Pawlak . . . . rests on a new rule of constitutional law that the Supreme Court has not recognized, much less made retroactive on collateral review."), with In re Patrick, 2016 WL 4254929, at *3 ("The Supreme Court's rationale in Welch for finding Johnson retroactive [in the ACCA context] applies equally to the Guidelines.").
For the reasons discussed, the Court agrees that issuance of a stay is appropriate under the circumstances. Accordingly, United States' request [Doc. 176] is GRANTED and the action [E.D. Tenn. Case No. 3:16-CV-268-TAV] is STAYED pending the decision in Beckles. The parties are DIRECTED to file a joint status report within thirty (30) days of that decision.
Also before the Court is the United States's July 5, 2016 request that this Court defer ruling on Petitioner's pro se petition until FDSET has an opportunity to brief the issue [Doc. 174]. Such a stay became unnecessary when FDSET filed its supplement in support on July 8, 2016 [Doc. 175]. Accordingly, the motion [Doc. 174] is DENIED as moot.
IT IS SO ORDERED.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE