Summary
noting the Ninth Circuit's recent action in Gardner and Jacob in support of its order denying a similar motion to stay another 28 U.S.C. § 2255 petition based on Johnson
Summary of this case from Te v. United StatesOpinion
Case No. 13-cr-00131-PJH-1
08-10-2016
UNITED STATES OF AMERICA, Plaintiff, v. RICHARD ERIC STEWART, Defendant.
ORDER DENYING MOTION TO STAY
Re: Doc. No. 43
The government has filed a motion to stay the motion of defendant Richard Eric Stewart to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 under the holding of Johnson v. United States, 135 S. Ct. 2551 (2015). The government seeks a stay of the § 2255 motion on the ground that the Supreme Court granted certiorari in Beckles v. United States, No. 15-8544, which presents issues raised in defendant's § 2255 motion in light of the holding of Johnson, where the Court held unconstitutionally vague the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii) (defining "violent felony" to include an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another"). The ACCA residual clause invalidated in Johnson is identical to the residual clause of the definition of "crime of violence" in the career offender guidelines, U.S.S.G. § 4B1.2(a)(2). The Supreme Court granted certiorari review in Beckles on the questions whether Johnson applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in U.S.S.G. § 4B1.2(a)(2), and whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review.
The government represents that Beckles will likely decide the application of Johnson to the Guidelines and the retroactivity question presented in defendant's § 2255 motion. Doc. no. 43. Defendant promptly filed an opposition to the motion to stay on the ground that judicial efficiency alone is not a valid basis to justify an indefinite and potentially lengthy stay in a habeas case. Doc. no. 44. In support of his opposition to the stay, defendant cites Yong v. I.N.S., 208 F.3d 1116 (9th Cir. 2000), where the Ninth Circuit held that the district court abused its discretion by staying a habeas petition pending resolution of an appeal in a case before the Ninth Circuit presenting similar issues to be decided, Ma v. Reno, 208 F.3d 815 (9th Cir. 2000), vacated by Zadvydas v. Davis, 533 U.S. 678 (2001). In reviewing the stay order, the Ninth Circuit noted that "because the stay terminates upon the 'resolution of the [Ma] appeal,' if the Supreme Court should grant certiorari to review this court's decision in Ma, the stay could remain in effect for a lengthy period of time, perhaps for years if our decision in Ma is reversed and the case is remanded for further proceedings." Id. at 1119. The court in Yong reasoned that "habeas proceedings implicate special considerations that place unique limits on a district court's authority to stay a case in the interests of judicial economy," and held that "although considerations of judicial economy are appropriate, they cannot justify the indefinite, and potentially lengthy, stay imposed here." Id. at 1120-21.
Defendant's brief in opposition to the motion to stay does not specifically address how much time he has served in custody or the guideline sentencing range that would be applicable if he is granted relief under Johnson. The court notes that on November 12, 2014, defendant was convicted of being a felon in possession of a firearm and ammunition, and was sentenced to 77 months imprisonment. The court further notes that the Bureau of Prisons website (www.bop.gov) indicates that defendant's expected release date is September 9, 2020. Defendant states in his amended § 2255 motion that he was subject to a guideline range of 77-96 months imprisonment after a finding that defendant had been previously convicted of a "crime of violence" pursuant to U.S.S.G. § 2K2.1(a)(3) (applicable if the offense involved "a semiautomatic firearm that is capable of accepting a large capacity magazine" and "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense"). Doc. no. 42 at 3. He argues that without the sentencing enhancement, his guideline range would have been 30-37 months, based on an adjusted offense level of 12 and criminal history category VI. Id. Alternatively, he contends that even if he remained subject to a sentencing enhancement pursuant to U.S.S.G. § 2K2.1(a)(4), based on possession of a semiautomatic weapon, his adjusted offense level would be 19, supporting a guideline range of 63-78 months imprisonment. Id. at 6. He argues that a low-end sentence under this post-Johnson guideline range would still result in a reduction of his 77-month prison term by 14 months. Id. For purposes of balancing the competing interests presented on the motion to stay, the court determines that defendant's release date, if advanced by 14 months, would be around July 2019.
The court carefully considers whether a stay pending resolution of Beckles is likely to be resolved without inordinate delay because of the court's duty to adjudicate habeas petitions in a timely manner. Yong, 208 F.3d at 1119-20. Because a decision in Beckles is expected within a year, the government does not seek an indefinite stay. Unlike the appeal at issue in Yong which was subject to further review, the Supreme Court is likely to decide conclusively the question presented in Beckles whether Johnson applies retroactively to collateral challenges to sentence enhancements applied under the residual clause of the guidelines. However, staying these proceedings pending a decision by the Supreme Court on this threshold question could result in some prejudice to defendant who seeks relief which, if granted, could result in a reduced term of imprisonment. Furthermore, the court notes that the Ninth Circuit recently lifted the stays previously entered in Gardner v. United States, No. 15-72559 and Jacob v. United States, No. 15-73302 (9th Cir. Aug. 1, 2016), which the government cited in support of the instant motion to stay. Doc. no. 45. Under these circumstances, considerations of judicial economy are outweighed by the potential prejudice to defendant, and a stay is not warranted.
Accordingly, the government's motion to stay the § 2255 motion is DENIED.
IT IS SO ORDERED. Dated: August 10, 2016
/s/_________
PHYLLIS J. HAMILTON
United States District Judge