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Zepeda v. United States

United States District Court, D. Arizona

August 10, 2018

Damien Miguel Zepeda, Movant/Defendant
v.
United States of America, Respondent/Plaintiff.

          REPORT & RECOMMENDATION ON UNOPPOSED MOTION TO STAY

          James F. Metcalf United States Magistrate Judge

         Under 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.[1] 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.

         Movant's 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.

         On 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.

         For the 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.

         IT IS THEREFORE RECOMMENDED that Movant's Unopposed Motion to Continue Stay, filed August 7, 2018 (Doc. 22) be GRANTED.

         IT IS FURTHER RECOMMENDED that the consideration of this matter be STAYED until the Ninth Circuit's decision in United States v. Begay, No. 14-10080.

         IT IS FURTHER RECOMMENDED that additional briefing be ordered as follows:

         1) 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;

         2) within 30 days of the service of such supplemental brief, Respondent shall respond thereto;

         3) 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.

         IT 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.

         EFFECT OF RECOMMENDATION

         This 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 ...


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