Percy v. USA

Filing 18

ORDER - The Court does not adopt the 13 R&R. This case should not be stayed pending the decisions in Begay and Dimaya. This case is referred back to Magistrate Judge Deborah M. Fine to set a briefing schedule on Petitioner's § 2255 petition and for issuance of an R&R on Petitioner's § 2255 petition. Signed by Judge David G Campbell on 12/12/2016. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Shawn Tyrone Percy,
Petitioner,

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No. CV 16-02066-PHX-DGC (DMF)
ORDER

vs.
United States,
Respondent.

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Magistrate Judge Deborah M. Fine has issued a Report and Recommendation that

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the Court stay this matter pending decision of cases by the Ninth Circuit and Supreme

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Court (“R&R”). Doc. 13. Petitioner objects. Doc. 14. The Court concludes that this

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matter should not be stayed.

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I.

Background.

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On October 7, 1999, Petitioner Shawn Tyler Percy was found guilty by a jury of

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second degree murder in violation of 18 U.S.C. §1111, and discharging a firearm during

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and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii).

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Doc. 1, ¶ 9. Petitioner was sentenced to 280 months in prison, consisting of 160 months

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on the murder count and 120 months on the § 924(c) count. Id.

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On June 26, 2016, Petitioner, through counsel, filed a Motion to Vacate, Set

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Aside, or Correct Sentence under 28 U.S.C. § 2255. Id. Petitioner asserts that his

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sentence is unconstitutional under Johnson v. United States, 135 S. Ct. 2551 (2015). Id.

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In Johnson, the Supreme Court held that the residual clause in the definition of a “violent

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felony” in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B) (“ACCA”), is

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unconstitutionally vague.

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sentence under 18 U.S.C. § 924(c)(1)(A)(iii) is likewise unconstitutional.

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Petitioner’s sentence expiration date on the second degree murder charge alone (not

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considering the § 924(c) sentence) was July 7, 2016. Doc. 11.

Johnson, 135 S. Ct. at 2557.

Petitioner argues that his
Doc. 1.

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On September 6, 2016, Respondent sought a stay of these proceedings pending the

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Supreme Court’s decision in Lynch v. Dimaya, No. 15-1498 (cert. granted Sept. 29,

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2016), and the Ninth Circuit’s decision in United States v. Begay, No. 14-10080. Doc. 5.

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Petitioner opposes the stay. Doc. 10.

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United States v. Begay has been fully briefed and argued, and was submitted for

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decision on May 26, 2016. Begay will address whether second degree murder is a crime

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of violence for purposes of a § 924(c) conviction and how Johnson impacts the analysis –

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questions posed by this petition. Respondent suggests that a decision could be handed

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down “any day now.” Doc. 5 at 4.

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The Supreme Court has granted certiorari in Lynch v. Dimaya, No. 15-1498. In

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that case, the Supreme Court will decide whether the residual clause of 18 U.S.C. § 16(b),

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which is identical to the residual clause of § 924(c)(3)(B), is unconstitutional for the same

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reasons as the residual clause in Johnson. Although a decision normally would be

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expected by June, the current vacancy on the Supreme Court, and uncertainty as to when

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that vacancy will be filled, makes that normal expectation less certain. If the vacancy is

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not filled, a 4-4 split could result in the issue not being resolved by June.

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On November 4, 2016, Judge Fine issued the R&R recommending that the Court

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grant the government’s Motion to Stay. Doc. 13. Petitioner filed an objection to the

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R&R (Doc. 14), and the government filed a reply (Doc. 17).

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II.

Standard of Review.

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A party may file specific written objections to the R&R’s proposed findings and

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recommendations. The Court must undertake de novo review of those portions of the

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R&R to which specific objections are made. The Court may accept, reject, or modify, in

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whole or in part, the findings or recommendations. Fed. R. Civ. P. 72(b); 28 U.S.C.

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§ 636(b)(1).

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III.

Analysis.

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“A district court has discretionary power to stay proceedings in its own court.”

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Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005) (citing Landis v. North

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American Co., 299 U.S. 248, 254 (1936)). The Court must weigh competing interests,

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including “the possible damage which may result from the granting of stay, the hardship

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or inequity which a party may suffer in being required to go forward, and the orderly

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course of justice measured in terms of the simplifying or complicating of issues, proof,

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and questions of law which could be expected to result from a stay.” Id. (quoting

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CMAX, Inc. v. Hall, 300 F.2d 265 (9th Cir. 1962)). If there is even a fair possibility that

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the stay will work damage to someone else, the party seeking the stay “must make out a

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clear case of hardship or inequity.” Id. (quoting Landis, 299 U.S. at 255). In habeas

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cases, “special considerations” are implicated “that place unique limits on a district

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court’s authority to stay a case in the interests of judicial economy.” See Yong v. INS,

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208 F.3d 1116, 1120 (9th Cir. 2000).

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The government argues that staying the proceedings would promote judicial

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efficiency and consistency. Doc. 5 at 5. Rulings in Begay and Dimaya, the government

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contends, will answer or clarify several issues in this case that would otherwise require

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litigation by the parties and independent findings by the Court. Id. at 4.

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Petitioner agrees that Begay will deal with an issue in this case – whether second-

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degree murder amounts to a crime of violence under § 924 (c)(3)(B). See Doc. 10 at 3.

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But Petitioner contends that a stay is still unwarranted. Petitioner argues that the Court

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remains bound by the Ninth Circuit’s decision in Dimaya unless and until the Supreme

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Court changes the Ninth Circuit’s holding in that case, and the fact that these issues are

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pending before appellate courts is insufficient reason to grant the requested stay. Id. at 3,

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5. “This Court has a statutory obligation to rule on [Petitioner’s] § 2255 motion without

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undue delay – particularly where, as here, prevailing on his challenge would result in his

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immediate release from custody.” Id. at 3 (citing 28 U.S.C. § 2243).

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The Court concludes that Petitioner would face a distinct possibility of prejudice

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from any stay. He completed the portion of his sentence for second degree murder on

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July 7, 2016. See Doc. 11. Should he succeed on his § 2255 motion and have his

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§ 924(c) sentence vacated, he would be entitled to immediate release. Doc. 10 at 5.

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On the other hand, the government has not made out “a clear case of hardship or

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inequity.” Lockyer, 398 F.3d at 1109. This case likely will be pending for many months.

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Briefing must be completed on Petitioner’s § 2255 motion, Judge Fine must prepare an

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R&R, this Court must consider the R&R and any objections, and this Court’s decision

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likely will be appealed. If it is true that Begay will be decided any day now, it may well

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occur during the consideration by Judge Fine and can be addressed in the parties’ briefs

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or, if necessary, in short order through supplemental briefs.

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considered if it is decided during the pendency of this case, and, if it is not decided, this

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case will not have been delayed in the meantime. Given the fact that Petitioner may be

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released from custody as a result of this case, the Court concludes that it should not be

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delayed for events that can be considered as the case moves forward. The government

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does not face a clear case of hardship or inequity from proceeding in this manner.

Dimaya can also be

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The government argues that “every [Johnson] case in which the government has

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separately filed a motion to stay in [the Phoenix Division of the District of Arizona], the

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stay has ultimately been ordered or recommended.” Id. at 3. But the petitioners in those

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cases failed to show that they would be prejudiced by a stay. See, e.g., Hatch v. United

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States, No. CV-16-02041-PHX-JJT (MHB), 2016 WL 6143047 (D. Ariz. Oct. 20, 2016)

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(“Issuance of the stay . . . will not injure Petitioner, substantially or otherwise, because

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the portion of his sentence for which he does not seek resentencing . . . will not nearly

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have elapsed by the time the Supreme Court has provided any necessary guidance[.]”);

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Grant v. United States, No. CV-16-2057-PHX-JAT (BSB) (D. Ariz. Sept. 21, 2016)

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(petitioner’s earliest possible release if claim is successful is not until January 2018); see

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also Cascketta v. United States, No. CV-16-02042-PHX-JAT (JZB) (D. Ariz. Nov. 14,

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2016) (Defendant did not object to the stay, as he was already serving a 180 month

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sentence on counts unrelated to the motion); Arnold v. United States, No. CV-16-1839-

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PHX-SMM (DKD) (D. Ariz. Nov. 3, 2016) (no discussion of prejudice to the petitioner).

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A number of courts outside this district have denied motions to stay from the

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government because they would prejudice the petitioners. See, e.g., United States v.

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Shumilo, No. CV-16-4412-GW, 2016 WL 6302524 (C.D. Cal. Oct. 24, 2016) (“The

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Court would lift the stay and move forward with these proceedings, as Petitioner has

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clearly established prejudice from the stay.”); United States v. Carcamo, 2016 WL

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5897735 (N.D. Cal. Oct. 11, 2016) (“The Court is of the view that briefing should

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proceed on schedule without any stay in light of the fact that defendant could possibly be

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sentenced to time served if his 2255 motion is granted.”).

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IT IS ORDERED that the Court does not adopt the R&R (Doc. 13). This case

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should not be stayed pending the decisions in Begay and Dimaya. This case is referred

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back to Magistrate Judge Deborah M. Fine to set a briefing schedule on Petitioner’s

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§ 2255 petition and for issuance of an R&R on Petitioner’s § 2255 petition.

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Dated this 12th day of December, 2016.

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