Opinion
CV-17-1229-PHX-ROS (JFM) CR-08-1329-PHX-ROS
02-13-2019
Damien Miguel Zepeda, Movant/Defendant v. United States of America, Respondent/Plaintiff.
Order
Under consideration is Movant's Unopposed Motion to Continue Stay, filed February 12, 2019 (Doc. 28).
Movant, who is represented by counsel, seeks a continuation of a stay of the briefing schedule pending the Ninth Circuit's anticipated decision in United States v. Begay, No. 14-10080. The parties report that on January 10, 2019, the Ninth Circuit issued an order in Begay deferring "submission pending the Supreme Court's disposition of United States v. Davis, No. 18- 431." United States v. Begay, No. 14-10080, Dkt. 107. Movant argues that the decisions in this case could be dispositive of some of the issues in this case. Movant represents that Respondent does not oppose the stay. Indeed, Respondent has already filed a Report in Support of Continued Stay (Doc. 27) asserting the same arguments.
Prior motions also sought a stay until a decision by the Supreme Court in Lynch v. Dimaya, No. 15-1498.
Movant's Motion to Vacate (Doc. 1) was filed on April 25, 2017. Movant argues that his convictions under 18 U.S.C. § 924(c) and resulting 85 year sentences must be vacated based on the reasoning and holding of Johnson v. United States, 135 S.Ct. 2551 (2015), as construed by Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). A Response (Doc. 13) to the Motion to Vacate was filed on July 12, 2017. Movant has requested several extensions to reply (Docs. 14, 16) which were granted (Docs. 15, 17). Movant has not yet replied in support of his Motion to Vacate.
Respondent has conceded that the Motion is timely. (Answer, Doc. 13 at 12.) Accordingly, the recent decision in U.S. v. Blackstone, 903 F.3d 1010 (9th Cir. 2018) does not foreclose Movant's right to relief. In Blackstone, the court concluded an untimely Johnson claim attacking a conviction under 18 U.S.C. § 924(c) was not subject to 28 U.S.C. § 2255(f)(1) which permits a delayed commencement of the limitations period for new rules of law.
On April 17, 2018, the Supreme Court issued its opinion in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), affirming the Ninth Circuit's decision extending Johnson to 18 U.S.C. § 16(b). --------
Movant previously filed similar motions to stay (Docs. 18, 20, 22). On August 14, 2018, the Court adopted the reports and recommendations (Docs. 19, 21, 24) on those motions, stayed the case, and directed status reports regarding the continuance of the stay on the sooner of a decision in Begay or February 8, 2019.
Necessity of Order - The Court's Order stayed this case by granting Movant's various motions. No explicit term of the stay was adopted, and the terms requested in the motions varied. Accordingly, in recognition of the already protracted stay in these proceedings, and the potential that it will likely continue for six months or more, the undersigned adopts the parties' position that a further order is required. The recommendation, however, will be to clearly adopt a stay pending further order to obviate the need for periodic motions, and instead require periodic reports on the status of the stay.
Magistrate Judge Authority - The grant of a motion to stay may be deemed dispositive of a habeas petitioner's claims because it arguably effectively precludes some of the relief sought (e.g. the potential of immediate - or at least sooner - release from custody). See S.E.C. v. CMKM Diamonds, Inc., 729 F.3d 1248, 1260 (9th Cir. 2013) (denial of stay that did not effectively deny any ultimate relief sought was non-dispostive) and PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st Cir. 2010) (ruling on a motion to stay civil litigation pending arbitration is not dispositive of either the case or any claim or defense within it). But see Mitchell v. Valenzuela, 791 F.3d 1166, 1167 (9th Cir. 2015) (denial of stay to exhaust state remedies effectively dispositive of claims); and Bastidas v. Chappell, 791 F.3d 1155, 1157 (9th Cir. 2015) (same). Dispositive matters may not be heard directly by a magistrate judge in a case heard on referral, but must be addressed by way of a report and recommendation. See 28 U.S.C. § 636(b).
Here, the fact that Movant has requested the stay diminishes concerns that the motion could be considered dispositive. Nonetheless, in an abundance of caution, the undersigned addresses the matter by way of this Report and Recommendation.
Applicable Law - Generally, this court has authority to stay consideration of a case. A court's power to stay proceedings pending the resolution of another case is "incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Landis v. North American Co., 299 U.S. 248, 254 (1936). See also Rhines v. Weber, 544 U.S. 269, 276 (2005) ("District courts do ordinarily have authority to issue stays, where such a stay would be a proper exercise of discretion.") (citing Landis). "A district court has inherent power to control the disposition of the causes on its docket in a manner which will promote economy of time and effort for itself, for counsel, and for litigants." CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)
Ordinarily, the propriety of a requested stay is determined by the weighing of "the competing interests which will be affected by the granting or refusal to grant a stay." Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005). "Among these competing interests are the possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay." CMAX, 300 F.2d at 268.
And, ordinarily, judicial economy is a legitimate consideration in determining the need for a stay. For example, a "trial court may, with propriety, find it is efficient for its own docket, and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case." Leyva v. Certified Grocers of California, 593 F.2d 857, 863 (9th Cir. 1979).
However, in the context of habeas cases, "special considerations" are implicated "that place unique limits on a district court's authority to stay a case in the interests of judicial economy." See Yong v. INS, 208 F.3d 1116, 1120 (9th Cir. 2000). This is because a habeas proceeding is intended to be a swift remedy to illegal confinement, and the statutes mandate that the courts give habeas petitions special preference on their calendars. Id.
Consequently, although a short stay may be appropriate in a habeas case to await a determination in a parallel case in the same court, or to allow a state to prepare for a retrial of a successful petitioner, we have never authorized, in the interests of judicial economy, an indefinite, potentially lengthy stay in a habeas case.Yong v. I.N.S., 208 F.3d 1116, 1120 (9th Cir. 2000) (citations omitted) (quoting Jones v. Shell, 572 F.2d 1278, 1280 (8th Cir.1978)).
Nor do we now. "The writ of habeas corpus, challenging illegality of detention, is reduced to a sham if ... trial courts do not act within a reasonable time." A long stay also threatens to create the perception that courts are more concerned with efficient trial management than with the vindication of constitutional rights.
In Yong, the Ninth Circuit held that a district court had abused its discretion in staying habeas proceedings pending a decision in a pending appeal called Ma that raised similar issues. The Ninth Circuit held that the stay, which would last for an indefinite period of time, placed a "significant burden" on the petitioner by delaying progress on his petition contending that the INS was unconstitutionally detaining him. See Yong, 208 F.3d at 1120-21. The Yong panel reversed the stay-pending-decision even though the related appeal in question, Ma, had been placed on an expedited schedule.
Application to this Motion - In this case, the asserted bases for a stay have been the interests of uniform interpretation of the law and judicial economy. In requesting the stay, Movant argues that Begay will be informative. Under Yong, the undersigned would ordinarily conclude that a stay would be inappropriate, given that (despite expectations) there is no guarantee that decisions in either case will be issued in the near future, or that they will ultimately be dispositive, or even necessarily informative (i.e. because they may be resolved on a procedural or other unexpected basis). Here, however, Movant has requested the stay and Respondent has joined in the request. And the greatest risk of harm from a stay is to Movant, who is requesting the stay. Consequently, it appears that the normal special concerns raised in Yong do not apply, and that no prejudice to Movant is likely from the requested stay.
Given the potential that the decision in Begay may assist the Court and the parties in resolving the issues in this case, and result in economies to not only the Court, but to the parties, and increase the likelihood of a uniform application of the law as determined in those cases, the undersigned finds good cause to grant the stay.
However, given the potential that the stay could become protracted, the Court should continue to require updates on the subject cases after the expected time for decisions and/or upon such decisions, to permit the Court to re-evaluate whether a continued stay is appropriate.
IT IS THEREFORE RECOMMENDED that Movant's Unopposed Motion to Continue Stay, filed February 12, 2019 (Doc. 28) be GRANTED.
IT IS FURTHER RECOMMENDED that the consideration of this matter continue to be STAYED until further order of the Court.
IT IS FURTHER RECOMMENDED that the parties be required to file a status report regarding the continuance of the stay: (1) within 30 days of the issuance of any decision by the Ninth Circuit in Begay; (2) within 30 days of the issuance of any decision by the Supreme Court in Davis; and (2) in any event on or before August 8 , 2019 , and every three months thereafter.
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). Dated: February 13, 2019
17-1229-028r RR 19 02 12 on Motion to Continue Stay.docx
/s/_________
James F. Metcalf
United States Magistrate Judge