Opinion
Case No. 07-cr-20344
01-20-2017
DEREK PHOENIX, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Magistrate Judge Patricia T. Morris ORDER REINSTATING PETITIONER'S MOTION TO VACATE SENTENCE AND HOLDING IN ABEYANCE AND STAYING PETITION
On September 14, 2015, Petitioner Derek Phoenix filed a motion to vacate his sentence under 28 U.S.C. § 2255. See ECF No. 39. He argues that pursuant to the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015) (striking down the residual clause of the Armed Career Criminal Act as unconstitutionally vague), his sentence under the residual clause of the career offender provision of the United States Sentencing Guidelines must be vacated. Because Phoenix's petition was second or successive within the meaning of 28 U.S.C. § 2255(h), it was transferred to the Sixth Circuit. See ECF No. 53.
On January 19, 2017 the Sixth circuit issued an order authorizing Petitioner to proceed with his second or successive motion. See ECF No. 54. The Sixth Circuit further instructed this Court to hold Petitioner's case in abeyance pending the outcome of Beckles v. United States, 136 S.Ct. 2510 (2016), but also noted that this Court was free "to consider terminating the stay under appropriate circumstances, either on motion or sua sponte." Id. Pursuant to the Sixth Circuit's order:
It is ORDERED that Petitioner Phoenix's motion to vacate sentence under 28 U.S.C. § 2255, ECF No. 39, is REINSTATED.
It is further ORDERED that the petition is HELD IN ABEYANCE pending the outcome of Beckles v. United States, 136 S.Ct. 2510 (2016), and STAYED. Dated: January 20, 2017
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF 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 January 20, 2017.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager