United States District Court, C.D. California
ORDER SUMMARILY DISMISSING HABEAS PETITION FOR LACK
OF SUBJECT MATTER JURISDICTION
BIROTTE JR. UNITED STATES DISTRICT JUDGE
22, 2017, petitioner filed a Petition for Writ of Habeas
Corpus by a Person in Federal Custody (28 U.S.C. §
2241). Petitioner is serving a sentence of 201 months in
federal prison pursuant to his convictions in the United
States District Court for the District of Nevada for
kidnapping and other crimes. In his sole ground for federal
habeas relief, petitioner claims that he is entitled to a
reduction of his sentence under Johnson v. United
States, 135 S.Ct. 2551 (2015).
currently has a pending action in the sentencing court under
28 U.S.C. § 2255 for his Johnson claim.
However, the sentencing court stayed the action pending a
decision by the Ninth Circuit Court of Appeals in United
States v. Begay, 14-10080, or pending further order from
the sentencing court. Petitioner filed this Petition because,
according to him, the sentencing court's stay was
improper and is unnecessarily delaying the resolution of his
discussed below, this action is dismissed without prejudice
for lack of subject matter jurisdiction.
Court takes judicial notice of the docket from
petitioner's underlying criminal case in United
States v. Gonzalez et al., 3:05-cr-00098-HDM-RAM-2.
See Harris v. County of Orange, 682 F.3d 1126, 1132
(9th Cir. 2012) (courts may take judicial notice of
undisputed matters of public record, including documents on
file in federal or state courts).
2007, petitioner was convicted in the United States District
Court for the District of Nevada of conspiracy to commit
kidnapping, kidnapping, and carrying a firearm during a crime
of violence. He was sentenced to federal prison for 201
months. (Petition, Exhibit 2; Gonzalez, ECF No.
334.) In March 2009, the Ninth Circuit affirmed the judgment.
See United States v. Roberts, 319 F.App'x 575
(9th Cir. 2009).
August 2010, petitioner filed a motion in the sentencing
court under § 2255 on the ground of ineffective
assistance of counsel and other claims. (Petition at 2;
Gonzalez, ECF No. 377.) The sentencing court denied
the motion in July 2012. (Petition at 2; Gonzalez,
ECF No. 471.)
2015, the Supreme Court issued its decision in
Johnson, 135 S.Ct. 2551 (imposition of an increased
sentence based on a prior violent felony conviction, under
the residual clause of the Armed Career Criminal Act,
violates due process). In May 2016, petitioner sought leave
to file a successive § 2255 motion in the sentencing
court challenging the legality of his sentence in light of
Johnson. (Petition at 2; Gonzalez, ECF No.
529.) In June 2016, the Ninth Circuit granted him leave to
file a successive § 2255 motion in the sentencing court.
(Petition at 2; Gonzalez, ECF No. 531.) In its
order, however, the Ninth Circuit stated that the sentencing
court “may wish to stay proceedings pending this
court's decision in 14-10080, United States v.
Begay.” (Gonzalez, ECF No. 531.)
same day, the sentencing court stayed petitioner's §
2255 action pending the Ninth Circuit's decision in
Begay. (Petition at 3; Gonzalez, ECF No.
532.) In August 2016, petitioner's counsel filed a motion
to lift the stay because petitioner “cannot afford to
wait” until Begay is decided: Assuming
petitioner was entitled to relief under Johnson, he
had already served any sentence that was legally authorized.
(Petition at 3; Gonzalez, ECF No. 548.)
November 2016, the sentencing court continued the stay of
proceedings until Begay is decided, noting that
Begay will likely be dispositive. (Petition at 4;
Gonzalez, ECF No. 556.) In order to avoid any undue
delay, however, the sentencing court ordered the parties in
the meantime to file briefs on the merits of petitioner's
claims. (Id.) In January 2017, the government filed
a response. (Id., ECF No. 563.) Petitioner's
counsel filed a Reply in February 2017 and a supplement in
March 2017. (Id., ECF Nos. 571 and 572.)
interim, petitioner filed a pro se appeal of the
continued stay in the Ninth Circuit. (Petition at 4;
Gonzalez, ECF No. 558.) The Ninth Circuit dismissed
the appeal for lack of jurisdiction because the sentencing
court's order continuing the stay was not an appealable
order. (Petition at 4; Gonzalez, ECF No. 564.)
filed this pro se Petition on May 22, 2017. The crux
of the Petition is that petitioner is entitled to relief
under Johnson and that the sentencing ...