United States District Court, D. Arizona
REPORT & RECOMMENDATION ON UNOPPOSED MOTION TO
F. Metcalf United States Magistrate Judge
consideration is Movant's third Unopposed Motion to Stay,
filed August 7, 2018 (Doc. 22). Movant, who is represented by
counsel, seeks a continuation of a stay of the briefing
schedule pending the Ninth Circuit's anticipated decision
in United States v. Begay, No.
14-10080. Movant argues that the decisions in this
cases could be dispositive of some of the issues in this
case. Movant represents that Respondent does not oppose the
stay. Respondent has not responded to the motion.
Motion to Vacate (Doc. 1) was filed on April 25, 2017. Movant
argues that his convictions under 18 U.S.C. § 924(c) and
resulting 85 year sentences must be vacated based on the
reasoning and holding of Johnson v. United States,
135 S.Ct. 2551 (2015), as construed by Dimaya v.
Lynch, 803 F.3d 1110 (9th Cir. 2015). A
Response (Doc. 13) to the Motion to Vacate was filed on July
12, 2017. Movant has requested several extensions to reply
(Docs. 14, 16) which have been granted (Docs. 15, 17). Movant
has not yet replied in support of his Motion to Vacate.
October 3, 2017, Movant filed a similar Unopposed Motion to
Stay (Doc. 18). On October 26, 2017, the undersigned filed a
Report and Recommendation (Doc. 19) recommending that the
motion be granted and the matter stayed. On February 7, 2018,
Movant filed his second Unopposed Motion to Continue Stay
(Doc. 20). On February 27, 2018, the undersigned filed a
Report and Recommendation (Doc. 21) recommending that the
motion be granted and the matter stayed. To date, no
objections have been filed, nor orders entered on either of
the two Report and Recommendations.
reasons expressed in the first Report and Recommendation
(Doc. 19), the undersigned will again act by way of
recommendation, and will recommend the grant of a stay and
periodic updates on the subject cases, and supplemental
briefing after the decisions are entered.
IS THEREFORE RECOMMENDED that Movant's Unopposed
Motion to Continue Stay, filed August 7, 2018 (Doc. 22) be
IS FURTHER RECOMMENDED that the consideration of
this matter be STAYED until the Ninth
Circuit's decision in United States v. Begay,
IS FURTHER RECOMMENDED that additional briefing be
ordered as follows:
within 30 days after the Ninth Circuit's decision in
Begay, Movant shall file a supplemental brief in
support of his Motion to Vacate (Doc. 1) to address the
effect of those decisions to Movant's claims;
within 30 days of the service of such supplemental brief,
Respondent shall respond thereto;
Movant shall have 30 days from the service of such
supplemental response to reply to the Response (Doc. 13) to
the Motion to Vacate and such supplemental response.
IS FURTHER RECOMMENDED that the parties be required
to file a status report regarding the continuance of the
stay, upon: (1) the issuance of any decision in
Begay; and (2) in any event on or before
February 8, 2019.
recommendation is not an order that is immediately appealable
to the Ninth Circuit Court of Appeals. Any notice of appeal
pursuant to Rule 4(a)(1), Federal Rules of Appellate
Procedure, should ...