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Percy v. United States

United States District Court, D. Arizona

December 12, 2016

Shawn Tyrone Percy, Petitioner,
v.
United States, Respondent.

          ORDER

          David G. Campbell United States District Judge.

         Magistrate 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.

         I. Background.

         On 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) count. Id.

         On June 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. Doc. 11.

         On 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.

         United 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.

         The 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.

         On 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).

         II. Standard of Review.

         A party 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. § 636(b)(1).

         III. Analysis.

         “A 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).

         The 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 ...


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