Opinion
CV-17-1229-PHX-ROS (JFM) CR-08-1329-PHX-ROS
08-10-2018
Damien Miguel Zepeda, Movant/Defendant v. United States of America, Respondent/Plaintiff.
Report & Recommendation on Unopposed Motion To Stay
Under consideration is Movant's third Unopposed Motion to Stay, filed August 7, 2018 (Doc. 22). Movant, who is represented by counsel, seeks a continuation of a stay of the briefing schedule pending the Ninth Circuit's anticipated decision in United States v. Begay, No. 14-10080. Movant argues that the decisions in this cases could be dispositive of some of the issues in this case. Movant represents that Respondent does not oppose the stay. Respondent has not responded to the motion.
Prior motions also sought a stay until a decision by the Supreme Court in Lynch v. Dimaya, No. 15-1498. On April 17, 2018, the Supreme Court issued its opinion in Sessions v. Dimaya, 138 S.Ct. 1204 (2018). --------
Movant's Motion to Vacate (Doc. 1) was filed on April 25, 2017. Movant argues that his convictions under 18 U.S.C. § 924(c) and resulting 85 year sentences must be vacated based on the reasoning and holding of Johnson v. United States, 135 S.Ct. 2551 (2015), as construed by Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). A Response (Doc. 13) to the Motion to Vacate was filed on July 12, 2017. Movant has requested several extensions to reply (Docs. 14, 16) which have been granted (Docs. 15, 17). Movant has not yet replied in support of his Motion to Vacate.
On October 3, 2017, Movant filed a similar Unopposed Motion to Stay (Doc. 18). On October 26, 2017, the undersigned filed a Report and Recommendation (Doc. 19) recommending that the motion be granted and the matter stayed. On February 7, 2018, Movant filed his second Unopposed Motion to Continue Stay (Doc. 20). On February 27, 2018, the undersigned filed a Report and Recommendation (Doc. 21) recommending that the motion be granted and the matter stayed. To date, no objections have been filed, nor orders entered on either of the two Report and Recommendations.
For the reasons expressed in the first Report and Recommendation (Doc. 19), the undersigned will again act by way of recommendation, and will recommend the grant of a stay and periodic updates on the subject cases, and supplemental briefing after the decisions are entered.
IT IS THEREFORE RECOMMENDED that Movant's Unopposed Motion to Continue Stay, filed August 7, 2018 (Doc. 22) be GRANTED.
IT IS FURTHER RECOMMENDED that the consideration of this matter be STAYED until the Ninth Circuit's decision in United States v. Begay, No. 14-10080.
IT IS FURTHER RECOMMENDED that additional briefing be ordered as follows:
1) within 30 days after the Ninth Circuit's decision in Begay, Movant shall file a supplemental brief in support of his Motion to Vacate (Doc. 1) to address the effect of those decisions to Movant's claims;
2) within 30 days of the service of such supplemental brief, Respondent shall respond thereto;
3) Movant shall have 30 days from the service of such supplemental response to reply to the Response (Doc. 13) to the Motion to Vacate and such supplemental response.
IT IS FURTHER RECOMMENDED that the parties be required to file a status report regarding the continuance of the stay, upon: (1) the issuance of any decision in Begay; and (2) in any event on or before February 8 , 2019 . / / / /
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). Dated: August 10, 2018
/s/_________
James F. Metcalf
United States Magistrate Judge 17-1229r RR 18 08 08 on MStay.docx