Zepeda v. USA

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATION - Adopting in full 19 Report and Recommendation and granting 18 Motion to Stay. Adopting in full 21 Report and Recommendation and granting 20 Motion to Stay. Adopting in full 24 Report and Recomme ndation and granting 22 Motion to Continue Stay of Brief. The parties shall file a Status Report regarding the continuance of the stay either: within 30 days of a decision in Begay or on 2/8/2019, whichever occurs sooner. See Order for further details. Signed by Senior Judge Roslyn O Silver on 8/14/18. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Damien Miguel Zepeda,

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Petitioner,

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ORDER

v.

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No. CV-17-01229-PHX-ROS (JFM)

USA,

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Respondent.

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Following a jury trial, Petitioner Damien Miguel Zepeda (“Petitioner”) was

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convicted of nine counts, for which he was sentenced to a combination of concurrent and

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consecutive sentences totaling 1083 months in prison, followed by 5 years on supervised

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release. (Docs. 5; 18). Petitioner’s convictions and sentences were affirmed on appeal,

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(Doc. 5), and on April 25, 2017, Petitioner filed a motion pursuant to § 2255 raising

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eleven grounds for relief. (Doc. 1).

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Petitioner then filed an unopposed motion to stay the remainder of the briefing

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schedule pending the United States Supreme Court’s decision in Lynch v. Dimaya, No.

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15-1498 (Dimaya v. Lynch, 803 F.3d 1110, 1117-19 (9th Cir. 2015) (cert. granted in

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Lynch v. Dimaya, 137 S.Ct. 31 (Sept. 29, 2016) and the Ninth Circuit’s decision in

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United States v. Begay, No. 14-10080 (9th Cir. Mar. 29, 2017). (Doc. 18). In a Report

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and Recommendation, Magistrate Judge James F. Metcalf recommended granting

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Petitioner’s motion for a stay. (Doc. 19).

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Subsequently, Petitioner filed an unopposed motion to continue the stay,

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explaining that the United States Supreme Court did not issue its decision in Dimaya

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during the October 2016 Term, but instead heard re-argument, and that the Ninth’s

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Circuit was awaiting the Supreme Court’s decision in Dimaya to issue its decision in

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Begay. (Doc. 20). In a Report and Recommendation, Magistrate Judge James F. Metcalf

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recommended granting this motion as well. (Doc.21).

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Most recently, on August 7, 2018, Petitioner filed another unopposed motion to

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continue to stay proceedings in this case, explaining that, although the Supreme Court

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issued a decision in Dimaya, the Ninth Circuit has not yet issued its decision in Begay.

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(Doc. 22).

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In a Report and Recommendation, Magistrate Judge James F. Metcalf

recommended granting this motion as well. (Doc. 24).

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Whether a stay is warranted requires balancing “the competing interests which

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will be affected by the granting or refusal to grant a stay,” Lockyer v. Mirant Corp., 398

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F.3d 1098, 1109 (9th Cir. 2005), including “the possible damage which may result from

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the granting of a stay, the hardship or inequity which a party may suffer in being required

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to go forward, and the orderly course of justice measured in terms of the simplifying or

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complicating of issues, proof, and questions of law which could be expected to result

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from a stay.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962). Here, neither party

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will be prejudiced if the case is stayed. Further, permitting a stay may simplify the issues

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in this case and promote judicial economy.

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Accordingly,

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IT IS ORDERED the Report and Recommendation, (Doc. 19), is ADOPTED IN

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FULL. Petitioner’s Unopposed Motion to Stay, (Doc. 18), is GRANTED.
IT IS FURTHER ORDERED the Report and Recommendation, (Doc. 21), is

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ADOPTED IN FULL.

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GRANTED.

Petitioner’s Unopposed Motion to Stay, (Doc. 20), is

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IT IS FURTHER ORDERED the Report and Recommendation, (Doc. 24), is

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ADOPTED IN FULL. Petitioner’s Motion to Continue Stay of Briefing, (Doc. 22), is

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GRANTED.

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IT IS FURTHER ORDERED the parties shall file a status report regarding the

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continuance of the stay either (1) within 30 days of a decision in Begay or (2) on

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February 8, 2019, whichever occurs sooner.

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IT IS FURTHER ORDERED the parties shall file additional briefing as follows:

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(1) no later than 30 days after the Ninth Circuit’s decision in Begay, Petitioner

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shall file a supplemental brief in support of his Motion to Vacate (Doc. 1) to

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address the effect of those decisions to Petitioner’s claims;

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(2) no later than 30 days of the service of such supplemental brief, Respondent

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shall file a response;

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(3) Petitioner shall file a reply no later than 30 days from the date of service of

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Respondent’s supplemental response.

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arguments in Respondent’s supplemental brief, as well as those in Respondent’s

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Response to Petitioner’s Motion to Vacate, (Doc. 13).

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Dated this 14th day of August, 2018.

Petitioner’s reply shall address the

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Honorable Roslyn O. Silver
Senior United States District Judge

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