Opinion
1:14-CV-482 1:04-CR-424
07-01-2016
RICKY ORLANDO NICHOLS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
The Recommendation of the United States Magistrate Judge was filed in accordance with 28 U.S.C. § 636(b) and, on January 28, 2016, was served on the parties. (Docs. 71, 72). The petitioner filed a document entitled "Petitioner's Traverse/Reply to United States Magistrate Judge's Recommendation; and Motion to Supplement Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody." (Doc. 82). The petitioner has made no real argument in opposition to the Magistrate Judge's conclusion that the Simmons-based claims are barred by United States v. Foote, 784 F.3d 931 (4th Cir. 2015). (See Doc. 58).
In the same document, Mr. Nichols has moved to supplement his 2255 motion to add a claim for relief under Johnson v. United States, 135 S. Ct. 2551 (2015). (See Doc. 82). While this claim would likely be precluded under current Fourth Circuit law, see Foote, 784 F.3d 931, the Supreme Court has granted certiorari to decide whether Johnson applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause of § 4B1.2(a)(2) of the Sentencing Guidelines. See Beckles v. United States, 2016 WL 1029080 (June 27, 2016). Therefore the Court will stay resolution of Mr. Nichols' motion to supplement his § 2255 motion pending a decision in Beckles or other guidance from the Fourth Circuit.
IT IS THEREFORE ORDERED that:
1. The Court adopts the reasoning of the Magistrate Judge as to all matters raised in Mr. Nichols' original § 2255 motion. (See Doc. 71, recommending dismissal of motion at Doc. 58).
2. A ruling on Mr. Nichols' motion to supplement his § 2255 motion to add a Johnson claim, (Doc. 82), is STAYED, pending a decision in Beckles or other guidance from the Fourth Circuit, subject to further order of the Court.
3. The Federal Defender is appointed to represent the defendant in connection with his Johnson claim and, upon developments in the appellate court, shall file such motions or other pleadings as may be appropriate.
This the 1st day of July, 2016.
/s/_________
UNITED STATES DISTRICT JUDGE