United States District Court, D. Arizona
REPORT & RECOMMENDATION ON JOINT MOTION TO
F. Metcalf United States Magistrate Judge
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.
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 were granted
(Docs. 15, 17). Movant has not yet replied in support of his
Motion to Vacate.
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).
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
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.
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.
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
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)
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.
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).
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
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 ...