United States v. White

          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, ...