United States District Court, N.D. California
ORDER DENYING MOTION TO STAY Re: Dkt. No. 28
PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE
The
government has filed a motion to stay the motion of defendant
Arrington Dewayne Green to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255 under the holding
of Johnson v. United States, 135 S.Ct. 2551 (2015).
The government seeks a stay of the § 2255 motion on the
ground that the Supreme Court granted certiorari in
Beckles v. United States, No. 15-8544, which
presents issues raised in defendant’s § 2255
motion in light of the holding of Johnson, where the
Court held unconstitutionally vague the residual clause of
the Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e)(2)(B)(ii) (defining “violent felony” to
include an offense that “otherwise involves conduct
that presents a serious potential risk of physical injury to
another”). The ACCA residual clause invalidated in
Johnson is identical to the residual clause of the
definition of “crime of violence” in the career
offender guidelines, U.S.S.G. § 4B1.2(a)(2). The Supreme
Court granted certiorari review in Beckles on the
questions whether Johnson applies retroactively to
collateral cases challenging federal sentences enhanced under
the residual clause in U.S.S.G. § 4B1.2(a)(2), and
whether 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.
The
government represents that Beckles will likely
decide the application of Johnson to the Guidelines
and the retroactivity question presented in defendant’s
§ 2255 motion. Doc. no. 28. Defendant promptly filed an
opposition to the motion to stay, emphasizing that he would
be prejudiced by a stay of his § 2255 motion because if
he is granted relief on his Johnson claim, he could
be resentenced to time served. Doc. no. 29. He was sentenced
on July 11, 2008, to 144 months imprisonment for a conviction
on two counts of distribution of cocaine base. Without the
career offender enhancement, he contends that his guideline
range would have been 77-96 months. He argues that even with
a high-end corrected guideline sentence of 96 months, he is
overserving his custodial term.
In
support of his opposition to the stay, defendant cites
Yong v. I.N.S., 208 F.3d 1116 (9th Cir. 2000), where
the Ninth Circuit held that the district court abused its
discretion by staying a habeas petition pending resolution of
an appeal in a case before the Ninth Circuit presenting
similar issues to be decided, Ma v. Reno, 208 F.3d
815 (9th Cir. 2000), vacated by Zadvydas v. Davis,
533 U.S. 678 (2001). In reviewing the stay order, the Ninth
Circuit noted that “because the stay terminates upon
the ‘resolution of the [Ma] appeal, ’ if
the Supreme Court should grant certiorari to review this
court’s decision in Ma, the stay could remain
in effect for a lengthy period of time, perhaps for years if
our decision in Ma is reversed and the case is remanded for
further proceedings.” Id. at 1119. The court
in Yong reasoned that “habeas proceedings
implicate special considerations that place unique limits on
a district court’s authority to stay a case in the
interests of judicial economy, ” and held that
“although considerations of judicial economy are
appropriate, they cannot justify the indefinite, and
potentially lengthy, stay imposed here.” Id.
at 1120-21. To support his argument that a stay pending
Beckles is not warranted, defendant filed a
supplemental brief on August 3, 2016, indicating that the
Ninth Circuit lifted the stays previously entered in
Gardner v. United States, No. 15-72559 and Jacob
v. United States, No. 15-73302 (9th Cir. Aug. 1, 2016),
which the government cited in support of the instant motion
to stay.
The
court carefully considers whether a stay pending resolution
of Beckles is likely to be resolved without
inordinate delay because of the court’s duty to
adjudicate habeas petitions in a timely manner.
Yong, 208 F.3d at 1119-20. Because a decision in
Beckles is expected within a year, the government
does not seek an indefinite stay. Unlike the appeal
at issue in Yong which was subject to further
review, the Supreme Court is likely to decide conclusively
the question presented in Beckles whether
Johnson applies retroactively to collateral
challenges to sentence enhancements applied under the
residual clause of the guidelines. Staying these proceedings
pending a decision by the Supreme Court on this threshold
question could, however, result in prejudicial delay to
defendant, who seeks a reduced term of imprisonment that may
be exceeded by time served. Under these circumstances,
considerations of judicial economy are outweighed by the
potential prejudice to defendant, and a stay is not
warranted.
Accordingly,
the government’s motion to stay the § ...