United States District Court, D. Arizona
G. Campbell United States District Judge.
Judge Deborah M. Fine has issued a Report and Recommendation
that the Court stay this matter pending decision of cases by
the Ninth Circuit and Supreme Court (“R&R”).
Doc. 13. Petitioner objects. Doc. 14. The Court concludes
that this matter should not be stayed.
October 7, 1999, Petitioner Shawn Tyler Percy was found
guilty by a jury of second degree murder in violation of 18
U.S.C. §1111, and discharging a firearm during and in
relation to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii). Doc. 1, ¶ 9. Petitioner was
sentenced to 280 months in prison, consisting of 160 months
on the murder count and 120 months on the § 924(c)
26, 2016, Petitioner, through counsel, filed a Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §
2255. Id. Petitioner asserts that his sentence is
unconstitutional under Johnson v. United States, 135
S.Ct. 2551 (2015). Id. In Johnson, the
Supreme Court held that the residual clause in the definition
of a “violent felony” in the Armed Career
Criminal Act, 18 U.S.C. § 924(e)(2)(B)
(“ACCA”), is unconstitutionally vague.
Johnson, 135 S.Ct. at 2557. Petitioner argues that
his sentence under 18 U.S.C. § 924(c)(1)(A)(iii) is
likewise unconstitutional. Doc. 1. Petitioner's sentence
expiration date on the second degree murder charge alone (not
considering the § 924(c) sentence) was July 7, 2016.
September 6, 2016, Respondent sought a stay of these
proceedings pending the Supreme Court's decision in
Lynch v. Dimaya, No. 15-1498 (cert. granted Sept.
29, 2016), and the Ninth Circuit's decision in United
States v. Begay, No. 14-10080. Doc. 5. Petitioner
opposes the stay. Doc. 10.
States v. Begay has been fully briefed and argued, and
was submitted for decision on May 26, 2016. Begay
will address whether second degree murder is a crime of
violence for purposes of a § 924(c) conviction and how
Johnson impacts the analysis - questions posed by
this petition. Respondent suggests that a decision could be
handed down “any day now.” Doc. 5 at 4.
Supreme Court has granted certiorari in Lynch v.
Dimaya, No. 15-1498. In that case, the Supreme Court
will decide whether the residual clause of 18 U.S.C. §
16(b), which is identical to the residual clause of §
924(c)(3)(B), is unconstitutional for the same reasons as the
residual clause in Johnson. Although a decision
normally would be expected by June, the current vacancy on
the Supreme Court, and uncertainty as to when that vacancy
will be filled, makes that normal expectation less certain.
If the vacancy is not filled, a 4-4 split could result in the
issue not being resolved by June.
November 4, 2016, Judge Fine issued the R&R recommending
that the Court grant the government's Motion to Stay.
Doc. 13. Petitioner filed an objection to the R&R (Doc.
14), and the government filed a reply (Doc. 17).
Standard of Review.
may file specific written objections to the R&R's
proposed findings and recommendations. The Court must
undertake de novo review of those portions of the R&R to
which specific objections are made. The Court may accept,
reject, or modify, in whole or in part, the findings or
recommendations. Fed.R.Civ.P. 72(b); 28 U.S.C. §
district court has discretionary power to stay proceedings in
its own court.” Lockyer v. Mirant Corp., 398
F.3d 1098, 1109 (9th Cir. 2005) (citing Landis v. North
American Co., 299 U.S. 248, 254 (1936)). The Court must
weigh competing interests, including “the possible
damage which may result from the granting of 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.” Id. (quoting CMAX,
Inc. v. Hall, 300 F.2d 265 (9th Cir. 1962)). If there is
even a fair possibility that the stay will work damage to
someone else, the party seeking the stay “must make out
a clear case of hardship or inequity.” Id.
(quoting Landis, 299 U.S. at 255). In 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).
government argues that staying the proceedings would promote
judicial efficiency and consistency. Doc. 5 at 5. Rulings in
Begay and Dimaya, the government contends,
will answer or clarify several issues in this case that would
otherwise require ...