United States District Court, N.D. California
ORDER GRANTING GOVERNMENT'S MOTION TO STAY
PETITION; SETTING BRIEFING SCHEDULE, Re: Dkt., 42
MAXINE
M. CHESNEY UNITED STATES DISTRICT JUDGE
Before
the Court is the government's "Motion to Stay
Petition under 28 U.S.C. § 2255, " filed June 29,
2016. Defendant Vernon White has filed opposition, to which
the government has replied. Having read and considered the
papers filed in support of and in opposition to the motion,
the Court rules as follows.
By
indictment filed June 7, 2011, defendant was charged with two
felony offenses, bank robbery and escape from custody. He
pleaded guilty to both charges, and the Court thereafter
imposed a prison term of 120 months. In sentencing defendant,
the Court determined that, under the United States Sentencing
Guidelines ("U.S.S.G."), the applicable guideline
range was 151-188 months. In calculating the range, the Court
found defendant was a "career offender, " based on
defendant's current offense of bank robbery, which the
Court found was a "crime of violence" that he
committed when he was at least eighteen years of age and
after he had sustained two prior convictions for robbery.
See U.S.S.G. § 4B1.1(a) (providing defendant is
"a career offender" where "defendant was at
least eighteen years old at the time defendant committed the
instant offense, " that the instant offense is "a
crime of violence, " and "the defendant has at
least two prior felony convictions of . . . a crime of
violence").
On June
3, 2016, defendant filed a motion for relief under §
2255, in which he argues he was denied due process at
sentencing and should be resentenced. Specifically, defendant
challenges as unconstitutional the "residual
clause" (see Def.'s Mot. at 5:21-22) set
forth below in italics, found in the following guideline
defining the term "crime of violence":
The term "crime of violence" means any offense
under federal or state law, punishable by imprisonment for a
term exceeding one year, that--
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.
See U.S.S.G. § 4B1.2(a) (emphasis added). The
term "crime of violence, " in turn, is, as noted
above, found in the guideline defining "career
offender." See U.S.S.G. § 4B1.1(a).
Defendant
contends his sentence was "imposed under the residual
clause" (see Def.'s Mot. at 18:16), and
that said clause is unconstitutional given the Supreme
Court's reasoning in Johnson v. United States,
135 S.Ct. 2551 (2015), in which the Supreme Court found
unconstitutional the "residual clause" contained in
a section of the Armed Career Criminal Act defining the term
"violent crime." See 18 U.S.C. §
924(e)(2)(B). Additionally, defendant, again citing
Johnson, argues that, although robbery is listed as
an example of a "crime of violence" in the
commentary to U.S.S.G. § 4B1.2(a), the commentary cannot
expand the scope of the guideline term.
In its
motion for a stay, the government points out that the very
issues presented by defendant's § 2255 motion are
presently pending before the Supreme Court. Specifically, on
June 27, 2016, the Supreme Court granted a petition for a
writ of certiorari in Beckles v. United States,
which petition presents the following three issues: (1)
"[w]hether Johnson applies retroactively to
collateral cases challenging federal sentences enhanced under
the residual clause in U.S.S.G. § 4B1.2(a)(2)"; (2)
"[w]hether Johnson's constitutional holding
applies to the residual clause in U.S.S.G. §
4B1.2(a)(2), thereby rendering challenges to sentences
enhanced under it cognizable on collateral review"; and
(3) "[w]hether mere possession of a sawed-off shotgun,
an offense listed as a 'crime of violence' only in
the commentary to U.S.S.G. § 4B1.2, remains a 'crime
of violence' after Johnson." See
Beckles v. United States, 2016 WL 1029080 (June 27,
2016).
The
Ninth Circuit has held that "[a] trial court may, with
propriety, find it is efficient for its own docket and the
fairest outcome for the parties to enter a stay of an action
before it, pending resolution of independent proceedings
which bear upon the case." See Leyva v. Certified
Grocers of California, Ltd., 593 F.2d 857, 863 (9th Cir.
1979). Here, resolution of Beckles will do more than
"bear upon the case"; indeed, the outcome would
appear determinative of defendant's § 2255 motion,
barring any argument the government might make in response
thereto independent of the residual clause.
The
Ninth Circuit nonetheless has cautioned that a stay should
not be granted "unless it appears likely the other
proceedings will be concluded within a reasonable time in
relation to the urgency of the claims presented to the
court." See id. at 864. The Ninth Circuit has
held, for example, that a stay should be not granted if the
length of the time is "indefinite" or
"potentially lengthy." See Yong v. INS,
208 F.3d 1116, 1120 (9th Cir. 2000) (reversing order staying
proceedings on petition for writ of habeas corpus, where
period of stay was "potentially for years"). Here,
however, the anticipated length of the stay is neither
indefinite nor potentially lengthy, as the Supreme Court has
scheduled the Beckles case for argument in its
October 2016 term, which begins in less than three
months.[1] Indeed, as the government points out, the
Ninth Circuit itself has recently stayed two cases pending
before it, each of which presents the issue of whether the
holding in Johnson applies to defendants seeking
collateral review based on a theory that the residual clause
in U.S.S.G. § 4B1.2 is unconstitutional. See Gardner
v. United States, Case No. 15-72559, slip op.
at 1 (9th Cir. June 27, 2016); Jacob v. United
States, Case No. 15-73302, slip op. at 1 (9th Cir. June
27, 2016).
The
Court next considers whether imposition of a stay would
unfairly prejudice defendant. See Yong, 208 F.3d at
1121. Defendant asserts that, to date, he has served 61
months in custody and, further, if his § 2255 motion is
granted, he intends to argue the guideline range should be
57-71 months and that the Court should consider a variance
below said range. The Court, however, finds defendant would
not be prejudiced by a stay, as it does not appear that, at
this time, he is able to overcome the obstacle presented by
the one-year statute of limitations contained in § 2255.
In particular, where, as here, a defendant moves for
collateral review based on a change in the law, he may do so
within a year of the "date on which the right asserted
was initially recognized by the Supreme Court" and only
if that right is "made retroactively applicable to cases
on collateral review." See 28 U.S.C. §
2255(f)(3). In this instance, as the Ninth Circuit has
observed, "[i]t is an open question . . . whether
[U.S.S.G. § 4B1.2(a)'s] residual clause remains
valid in light of Johnson, " see United
States v. Willis, 795 F.3d 986, ...