McCabe v. USA

Filing 31

ORDER - IT IS ORDERED that the Report and Recommendation (Doc. 26 ) is rejected. IT IS FURTHER ORDERED that this matter is re-referred to Magistrate Judge Eileen S. Willett pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a further report and recommendation. (See document for further details). Signed by Senior Judge James A Teilborg on 4/23/18. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Harry McCabe, Sr.,
Movant/Defendant,

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ORDER

v.

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No. CV-16-08131-PCT-JAT (ESW)
CR-12-8135-PCT-JAT-1

USA,

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Respondent/Plaintiff.

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Pending before the Court is Movant’s motion to vacate, set aside or correct

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sentence (“Motion”). Movant was convicted of four Counts in 2013. (Doc. 1 at 1).

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Movant challenges two of his four convictions in his motion. (Doc. 1 at 3; Doc. 26 at 2).

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Specifically, Movant challenges his convictions on Counts 3 and 4. (Doc. 26 at 2).

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On January 30, 2018, the Magistrate Judge to whom this case was assigned issued

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a Report and Recommendation (R&R) recommending that the Motion be denied with

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respect to Count 3 and stayed with respect to Count 4. Movant objected to the R&R.

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The Government agrees with the ultimate conclusion of the R&R as to Count 3, but

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preserved additional arguments; for example the Government argues that the entire

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Motion is untimely. (Doc. 30 at 2 n.1).

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With respect to Count 4, the R&R recommended this case be stayed until the

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United States Supreme Court issues a decision in Dimaya (which occurred on April 17,

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2018) and the Ninth Circuit Court of Appeals issues a decision in Begay. Movant objects

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to Counts 3 and 4 being addressed separately, arguing “The outcome of count 3 should be

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addressed similarly to that of count 4. The matter should be stayed pending the decision

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of the United States Supreme Court in Dimaya and the Ninth Circuit decision in Begay.”

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(Doc. 29 at 3).

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At this point, given that Dimaya has now been decided, the Court believes it

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would be more efficient to address the entire motion at the same time. Further, this

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approach is Movant’s preference for having his case decided. Thus, the Court will reject

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the R&R. However, by this Order, the Court is not making any substantive ruling on any

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aspect of this case (or the objections).

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The Court will not stay this case pending the outcome of Begay and will instead

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leave to the Magistrate Judge’s determination whether, given the holding of Dimaya, this

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case should still be stayed pending the outcome of Begay. Based on the foregoing,

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IT IS ORDERED that the Report and Recommendation (Doc. 26) is rejected.

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IT IS FURTHER ORDERED that this matter is re-referred to Magistrate Judge

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Eileen S. Willett pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure

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for further proceedings and a further report and recommendation.

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Dated this 23rd day of April, 2018.

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