Opinion
CASE NO. 6:16-cv-1038-Orl-31DCI 6:11-cr-402-Orl-31DCI
12-19-2018
JA'QUAD DOMINIQUE MCDUFFIE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
This cause is before the Court on Petitioner's Unopposed Motion to Continue Stay. (Doc. 22). The Court initially stayed these proceedings pending the Eleventh Circuit Court of Appeals' decision in McKinley v. United States, No. 16-16188 (granting a certificate of appealability on the issue of whether Johnson v. United States, 135 S. Ct. 2551 (2015) extends to the residual clause). (Doc. 17). The Court subsequently continued the stay of the proceedings in light of Ovalles v. United States, 889 F.3d 1259 (11th Cir. 2018) (granting rehearing en banc to determine (1) whether the risk of force clause in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Dimaya; and (2) whether the court should overrule United States v. McGuire, 706 F.3d 1333, 1336-37 (11th Cir. 2013) (requiring courts to apply the categorical approach in determining whether an offense constitutes a crime of violence under § 924(c)(3)). (Doc. 19).
On October 4, 2018, the Eleventh Circuit held that the residual clause in 18 U.S.C. § 924(c)(3)(B) does not require application of the categorical approach and is not unconstitutionally vague. Ovalles v. United States, 905 F.3d 1231 (11th Cir. 2018). Similarly, the First and Second Circuits have held that § 924(c)'s residual clause is not unconstitutionally vague. See United States v. Douglas, 907 F.3d 1, 16 (1st Cir. 2018); United States v. Barrett, 903 F.3d 166, 178 (2d Cir. 2018). In contrast, the Fifth, Tenth, and D.C. Circuit Courts have held that, applying the categorical approach, the residual clause in § 924(c) is unconstitutionally vague. See United States v. Davis, 903 F.3d 483, 486 (5th Cir. 2018); United States v. Eshetu, 898 F.3d 36, 27 (D.C. Cir. 2018); United States v. Salas, 889 F.3d 681, 686 (10th Cir. 2018).
The Solicitor General has filed petitions for writ of certiorari with the Supreme Court of the United States in Davis, No. 18-431 (Oct. 3, 2018), and Salas, No. 18-428 (Oct. 3, 2018). Additionally, the Eleventh Circuit has stayed several cases involving § 924(c) pending the resolution of the petitions for writ of certiorari. See, e.g., Enix v. United States, No. 17-11716 (11th Cir. Oct. 31, 2018); Soto-Martinez v. United States, No. 18-10335 (11th Cir. Oct. 31, 2018); Crawford v. United States, No. 18-11040 (11th Cir. Oct. 29, 2018).
Petitioner's sole ground for relief is whether his conviction and sentence for a violation of 18 U.S.C. § 924(c)(1)(A) is improper because the residual clause in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. The Court concludes that the procedural posture of the case and the interests of justice warrant continuing the stay of the proceeding pending a decision by the Supreme Court of the United States.
Accordingly, it is ORDERED as follows:
1. Petitioner's Unopposed Motion to Continue Stay (Doc. 22) is GRANTED. The stay of this case will continue pending the Supreme Court of the United States' decision regarding the petitions for writ of certiorari filed in Davis and Salas.
2. Petitioner shall file a motion to reopen this case or otherwise notify the Court within FIFTEEN (15) DAYS from issuance of a decision in these cases.
DONE AND ORDERED in Orlando, Florida, this 19th day of December, 2018.
/s/ _________
GREGORY A. PRESNELL
UNITED STATES DISTRICT JUDGE Copies to:
OrlP-3 12/19
Counsel of Record