Zepeda v. USA

Filing 36

ORDER adopting 35 Report and Recommendations in full and granting 34 Joint Motion to Stay. The parties shall file a status report regarding the continuance of the stay: (1) within 30 days of the issuance of any decision on the Motion for Rehearing by the Ninth Circuit in United States v. Orona, 923 F.3d 1197 (9th Cir. 2019); and (2) in any event on or before March 16, 2020, and every three months thereafter. Signed by Senior Judge Roslyn O Silver on 9/20/2019. (MMO)

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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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United States of America,

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ORDER

v.

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

Respondent.

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Petitioner, who is represented by counsel, has previously sought to stay the

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proceedings pending decisions by the Supreme Court in Sessions v. Dimaya, No. 15-1498,

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and the Ninth Circuit in United States v. Begay, No. 14-10080 (Docs. 18, 22, 28.) Each

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stay has been granted. (Docs. 19, 25, 30.) The parties now jointly move to extend the stay

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pending the Ninth Circuit’s anticipated en banc decision on motion for rehearing in United

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States v. Orona, 923 F.3d 1197 (9th Cir. 2019). (Doc. 34.) In a Report and

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Recommendation, Magistrate Judge James F. Metcalf recommended granting this motion.

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(Doc. 35.)

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

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be affected by the granting or refusal to grant a stay,” Lockyer v. Mirant Corp., 398 F.3d

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

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

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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 from

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

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

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this case and promote judicial economy.

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 35) is ADOPTED IN

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FULL. The Joint Motion to Stay (Doc. 34) is 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: (1) within 30 days of the issuance of any decision on the Motion

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for Rehearing by the Ninth Circuit in United States v. Orona, 923 F.3d 1197 (9th Cir.

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2019); and (2) in any event on or before March 16, 2020, and every three months

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thereafter.

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Dated this 20th day of September, 2019.

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Honorable Roslyn O. Silver
Senior United States District Judge

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