Zepeda v. United States

          REPORT & RECOMMENDATION ON JOINT MOTION TO STAY

          James F. Metcalf United States Magistrate Judge

          Under consideration is the Parties' Joint Status Report/Motion to Continue Stay filed September 16, 2019 (Doc. 34). The parties, including Movant who is represented by counsel, seek a continuation of a stay of the briefing schedule pending the Ninth Circuit’s anticipated en banc decision on motion for rehearing in United States v. Orona, 923 F.3d 1197 (9th Cir. 2019). The parties previously obtained stays to await decisions by the Supreme Court in Lynch v. Dimaya, No. 15-1498, and the Ninth Circuit in United States v. Begay, No. 14-10080. (See Order 8/14/18, Doc. 25; Order 2/22/19, Doc. 30.) Decisions have now been issued in both of those cases, but the parties contend the requested en banc review in Orona could now be the lynchpin of at least part of this case.

         Movant’s Motion to Vacate (Doc. 1) was filed on April 25, 2017.^[1] 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 (9^th Cir. 2015).^[2] 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 were granted (Docs. 15, 17). Movant has not yet replied in support of his Motion to Vacate.

         The parties previously obtained stays to await in Dimaya and Begay. On April 17, 2018, the Supreme Court issued its opinion in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), affirming the Ninth Circuit’s decision extending Johnson to 18 U.S.C. § 16(b), thereby invalidating its residual clause, and effectively that of § 924(c). On August 19, 2019, in United States v. Begay, 2019 WL 3884261 (2019), the Ninth Circuit followed a panel decision in United States v. Orona, 923 F.3d 1197 (9th Cir. 2019) that relied on Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1126, 1132 (9th Cir. 2006) (en banc) to conclude that reckless conduct did not qualify as a crime of violence under the elements test. The Government argued (as it does here) unsuccessfully that Fernadez-Ruiz had been effectively overruled by the decision in Voisine v. United States, 136 S.Ct. 2272 (2016).

         Both Begay and Orona relied on a three-judge panel’s obligation to follow existing Ninth Circuit precedent unless “clearly irreconcilable” with Voisine. See Begay, 2019 WL 3884261, at *5 and Orona, 923 F.3d at 1203. On August 22, 2019, the United States filed a petition for rehearing en banc in Orona. (CR 17-17508, Doc. 53.) If the petition for rehearing en banc is granted, the Ninth Circuit will have the opportunity to address whether the Supreme Court’s decision in Voisine is irreconcilable with Fernandez-Ruiz and its determination that “crimes of violence” cannot be committed recklessly. That determination could be dispositive of Movant’s challenged to Count 3, Use of a Firearm During a Crime of Violence (Assault Resulting in Serious Bodily Injury).

         Necessity of Order – The Court’s Order stayed this case by granting Movant’s various motions. Although not an explicit limitation on the stay, the rationale for the stay was the pendency of Dimaya and Begay. Neither of those cases is now pending. Accordingly, in the ordinary course, the stay would now be vacated, briefing completed, and a ruling issued. Continuing the stay should be effected by a new order.

         Magistrate Judge Authority - The grant of a motion to stay may be deemed dispositive of a habeas petitioner’s claims because it arguably effectively precludes some of the relief sought (e.g. the potential of immediate - or at least sooner – release from custody). See S.E.C. v. CMKM Diamonds, Inc., 729 F.3d 1248, 1260 (9th Cir. 2013) (denial of stay that did not effectively deny any ultimate relief sought was non-dispositive) and PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st Cir. 2010) (ruling on a motion to stay civil litigation pending arbitration is not dispositive of either the case or any claim or defense within it). But see Mitchell v. Valenzuela, 791 F.3d 1166, 1167 (9th Cir. 2015) (denial of stay to exhaust state remedies effectively dispositive of claims); and Bastidas v. Chappell, 791 F.3d 1155, 1157 (9th Cir. 2015) (same). Dispositive matters may not be heard directly by a magistrate judge in a case heard on referral, but must be addressed by way of a report and recommendation. See 28 U.S.C. § 636(b).

         Here, the fact that Movant has requested the stay diminishes concerns that the motion could be considered dispositive. Nonetheless, in an abundance of caution, the undersigned addresses the matter by way of this Report and Recommendation.

         Applicable Law - Generally, this court has authority to stay consideration of a case. A court's power to stay proceedings pending the resolution of another case is “incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. North American Co., 299 U.S. 248, 254 (1936). See also Rhines v. Weber, 544 U.S. 269, 276 (2005) (“District courts do ordinarily have authority to issue stays, where such a stay would be a proper exercise of discretion.”) (citing Landis). “A district court has inherent power to control the disposition of the causes on its docket in a manner which will promote economy of time and effort for itself, for counsel, and for litigants.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)

         Ordinarily, the propriety of a requested stay is determined by the weighing of “the competing interests which will be affected by the granting or refusal to grant a stay.” Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005). “Among these competing interests are the possible damage which may result from the granting of a 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.” CMAX, 300 F.2d at 268.

         And, ordinarily, judicial economy is a legitimate consideration in determining the need for a stay. For example, a “trial court may, with propriety, find it is efficient for its own docket, and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case.” Leyva v. Certified Grocers of California, 593 F.2d 857, 863 (9th Cir. 1979).

         However, in the context of 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). This is because a habeas proceeding is intended to be a swift remedy to illegal confinement, and the statutes mandate that the courts give habeas petitions special preference on their calendars. Id.

Consequently, although a short stay may be appropriate in a habeas case to await a determination in a parallel case in the same court, or to allow a state to prepare for a retrial of a successful petitioner, we have never authorized, in the interests of judicial economy, an indefinite, potentially lengthy stay in a habeas case.

Nor do we now. “The writ of habeas corpus, challenging illegality of detention, is reduced to a sham if ... trial courts do not act within a reasonable time.” A long stay also threatens to create the perception that courts are more concerned with efficient ...