Opinion
CASE NO. 6:16-cv-1038-Orl-31DCI 6:11-cr-402-Orl-31DCI
10-18-2017
JA'QUAD DOMINQUE MCDUFFIE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
This cause is before the Court on Petitioner's Notice of Decision and Unopposed Motion to Continue Stay (Doc. 18). On February 9, 2017, the Court entered an Order staying the instant 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 residual clause of 18 U.S.C. § 924(c)) (Doc. 17).
Petitioner notes that a decision has been rendered in McKinley (Doc. 18 at 1). See McKinley v. United States, No. 16-16188, 2017 WL 4511360 (11th Cir. Oct. 10, 2017). However, Petitioner asks the Court to continue the stay in light of Ovalles v. United States, 861 F.3d 1257 (11th Cir. 2017) (Doc. 18 at 2).
The Ovalles court held that the reasoning of Johnson does not apply to residual clause of § 924(c)). 861 F.3d at 1259. However, the Eleventh Circuit withheld the mandate, and the appellant has moved for rehearing en banc. A decision to rehear Ovalles may be dispositive to the issues presented in this case. Therefore, the procedural posture of the case and the interests of justice warrant continuing the stay of these proceedings pending issuance of the mandate in Ovalles.
Accordingly, it is ORDERED that the Unopposed Motion to Continue Stay (Doc. 18) is GRANTED. The stay of this case shall continue pending the Eleventh Circuit's issuance of the mandate in Ovalles. Petitioner shall either 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 18th day of October, 2017.
/s/ _________
GREGORY A. PRESNELL
UNITED STATES DISTRICT JUDGE Copies to:
OrlP-3 10/18
Counsel of Record