Opinion
CASE NO. 02-80810
08-17-2016
UNITED STATES OF AMERICA, Plaintiff, v. DAMON LAMAR JOHNSON D-2, Defendant.
ORDER STAYING LITIGATION PENDING SUPREME COURT'S DECISION IN BECKLES V. UNITED STATES
Defendant Damon Lamar Johnson a motion under 28 U.S.C. § 2255 based on the Supreme Court's invalidation of the residual clause of the Armed Career Criminal Act as unconstitutionally vague under the Due Process Clause of the Fifth Amendment. Johnson v. United States, 136 S.Ct. 2551, 2563 (2015). In response to the § 2255 motion, the Government seeks to stay the litigation pending the Supreme Court's Decision in Beckles v. United States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016) (Mem.) where the Supreme Court granted certiorari on the issue of whether Johnson should be applied retroactively.
The Government should have filed a separate motion seeking a stay in this matter instead of requesting the stay in its response to the § 2255 motion. See CM-ECF Pol. & Proc. R5 ("[A] response or reply to a motion must not be combined with a counter-motion."). --------
Recently, the Sixth Circuit in two published opinions, In re Embry, ___ F.3d ___, No. 16-5447, 2016 WL 4056056 (6th Cir. July 29, 2016) and In re: Antonio D. Patrick, ___ F.3d ___, No. 16-5353 (6th Cir. Aug. 12, 2016), held that the most appropriate procedure is to hold the cases in abeyance pending the Supreme's Court decision in Beckles.
Accordingly,
IT IS ORDERED that the briefing and litigation in this matter is STAYED. The parties will notify the Court when the Beckles decision is issued. A briefing schedule will then be issued at that time and the matter will proceed accordingly.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court Dated: August 17, 2016 I hereby certify that a copy of the foregoing document was served upon counsel of record on August 17, 2016, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager