Opinion
Criminal Case No. 11-20677 Civil Case No. 16-12078
07-22-2016
LATOYA PERRY, Movant, v. UNITED STATES, Respondent.
ORDER DENYING RESPONDENT'S MOTION TO STAY [91] AND ORDERING RESPONDENT TO FILE RESPONSE TO MOVANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE [84, 88]
On June 8, 2016, Movant filed, through counsel, a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 [Dkt. #84]. The Court directed the government to file a response by July 11, 2016. On June 24, 2016, Movant filed an Amended Motion [88]. On July 8, 2016, Movant filed a Motion to Appoint Substitute Counsel [90]. The same day, the government filed a Motion to Stay [91], asking the Court to stay proceedings pending the Supreme Court's decision in Beckles v. United States, — S. Ct. —, 2016 WL 1029080 (Mem.) (June 27, 2016). On July 12, 2016, the Court issued an Order Granting Movant's Motion to Appoint Substitute Counsel [92] and an Order Adjourning Deadline for Government Response to Motion to Vacate [93]. On July 18, 2016, Movant filed, through her new counsel, a Response [94] to the government's Motion to Stay, arguing that the Court should decide Movant's § 2255 motion without waiting for the Supreme Court's decision in Beckles.
One issue to be decided by the Supreme Court in Beckles is whether the residual clause of the definition of "crime of violence" in the United States Sentencing Guidelines' career offender provisions is invalid under Johnson v. United States, 135 S. Ct. 2551 (2015). The Sixth Circuit has already held that it is. United States v. Pawlak, 822 F.3d 902, 911 (6th Cir. 2016). The government does not take a contrary position. If the Supreme Court agrees, then it will decide a second issue: whether Johnson's invalidation of the career offender residual clause applies retroactively on collateral review. The government takes the position that it does not. Some courts have held that it does. E.g., Fife v. United States, Nos. 1:03-CR-149, 1:03-CR-158, 2016 WL 3745762, at *2 (S.D. Ohio July 13, 2016) (unpublished); Fleming v. United States, — F. Supp. 3d. —, 2016 WL 3647999, at *4-*5 (E.D. Mich. June 28, 2016); In re Hubbard, — F.3d —, 2016 WL 3181417, at *6-*7 (4th Cir. June 8, 2016).
The Court finds these courts' reasoning persuasive and believes that the Supreme Court will apply similar reasoning in Beckles. The Court therefore finds it unlikely that resources spent on Movant's Johnson challenge prior to the Beckles decision will go to waste. Accordingly, the Court declines to stay proceedings.
For the reasons stated above,
IT IS ORDERED that the government's Motion to Stay [91] is DENIED.
IT IS FURTHER ORDERED that the government must file a response to Movant's Motion to Vacate, Set Aside, or Correct Sentence [84, 88] within 35 days after entry of this Order.
SO ORDERED.
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge Dated: July 22, 2016
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on July 22, 2016.
s/Deborah Tofil
Deborah Tofil (for Mike Lang)
Case Manager (313)234-5122