Opinion
CIVIL CASE NO. 1:16-cv-00136-MR CRIMINAL CASE NO. 2:04-cr-00027-MR
08-08-2016
ROGER DALE CHARLES, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
THIS MATTER is before the Court on the motion of the United States requesting that the Court enter an order holding this habeas action in abeyance. [CV Doc. 4]. According to the government's motion, defense counsel does not object to its request. [Id.].
Citations to the record herein contain the relevant document number referenced preceded by either the letters "CV" denoting that the document is listed on the docket in the civil case file number 1:16-cv-00136-MR, or the letters "CR" denoting that the document is listed on the docket in the criminal case file number 2:04-CR-00027-MR. --------
Petitioner was found guilty by a jury of possession with intent to distribute cocaine base and aiding and abetting the same (21 U.S.C § 841(a)(1); 18 U.S.C. § 2) and possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1)). [CR Doc. 64]. The presentence report noted that Petitioner had prior qualifying North Carolina convictions that triggered the Career Offender enhancement under section 4B1.2 of the Sentencing Guidelines. The Court sentenced Petitioner as a Career Offender to a term of imprisonment of 360 months. [Id.].
On May 17, 2016, Petitioner commenced this action by filing a motion to vacate pursuant to 28 U.S.C. § 2255. [CV Doc. 1]. In his petition, Petitioner contends that, in light of Johnson v. United States, 135 S. Ct. 2551 (2015), three of his predicate Florida convictions -- battery of a law enforcement officer, armed burglary with a deadly weapon, and escape -- no longer qualify as "crimes of violence" under the Guidelines. [Id. at 2-4]. Consequently, Petitioner argues his Career Offender designation is improper and thus his sentence is unlawful. [Id.].
In response to Petitioner's motion, the government has filed a motion to hold this proceeding in abeyance. [CV Doc. 4]. The government notes that this case will be affected by the Supreme Court's decision next Term in Beckles v. United States, 616 Fed. Appx. 415 (11th Cir.), cert. granted, 2016 WL 1029080 (U.S. June 27, 2016) (No. 15-8544). [Id. at 2]. One of the questions presented in Beckles is whether Johnson applies retroactively to cases collaterally challenging federal sentences enhanced under the residual clause in U.S.S.G. § 4B1.2(a)(2). The residual clause invalidated in Johnson is identical to the residual clause in the Career Offender provision of the Guidelines, § 4B1.2(a)(2) (defining "crime of violence").
Based upon the reasons given by the government, and without objection by Petitioner, the Court concludes that the government's motion should be granted.
ORDER
IT IS, THEREFORE, ORDERED that the government's motion to place this case in abeyance [CV Doc. 4], is hereby GRANTED and this matter is hereby held in abeyance pending the Supreme Court's decision in Beckles. Thereafter, the government shall have 60 days from the date the Supreme Court decides Beckles within which to file its response in this matter.
IT IS SO ORDERED.
Signed: August 8, 2016
/s/_________
Martin Reidinger
United States District Judge