McCabe v. USA

Filing 32

ORDER: IT IS ORDERED staying this matter pending the Ninth Circuit's decision in United States v. Begay, No. 3:13-cr-08073-NVW-1 (D. Ariz. Jan. 29, 2014), appeal docketed, No. 14-10080 (9th Cir. Feb. 20, 2014). Within fourteen days after the decision in Begay is issued, the Government shall file a Supplemental Response. Movant may file a Supplemental Reply within seven days after service of the Supplemental Response. Signed by Magistrate Judge Eileen S Willett on 4/27/2018. (REK)

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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.,
Petitioner,

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ORDER

v.

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No. CV-16-08131-PCT-JAT (ESW)

USA,

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Respondent.

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On January 30, 2018, the undersigned issued a Report and Recommendation to the

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District Judge recommending that the Court dismiss Movant’s challenge to his conviction

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on Count 3. (Doc. 26 at 4-8). The undersigned recommended that the Court stay

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resolution of Movant’s challenge to his conviction on Count 4 pending the Ninth

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Circuit’s decision in United States v. Begay, No. 3:13-cr-08073-NVW-1 (D. Ariz. Jan.

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29, 2014), appeal docketed, No. 14-10080 (9th Cir. Feb. 20, 2014) and the Supreme

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Court’s decision in Sessions v. Dimaya, 803 F.3d 1110 (9th Cir. 2015), cert. granted,

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2016 WL 3232911 (U.S. Sept. 29, 2016) (No. 15-1498). (Doc. 26 at 8-11).

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On April 17, 2018, the Supreme Court issued its opinion in Dimaya, 138 S.Ct.

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1204 (2018).

On April 23, 2018, the District Judge re-referred this matter to the

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undersigned, explaining that given that Dimaya has now been decided, it would be more

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efficient to address all of Movant’s claims at the same time. (Doc. 31 at 2). In re-

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referring the matter, the District Judge left it to the undersigned’s determination whether,

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given Dimaya, this matter should be stayed pending the decision in Begay. (Id.). For the

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reasons explained in the Report and Recommendation (Doc. 26 at 8-10), the undersigned

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finds that the Ninth Circuit’s forthcoming decision in Begay may provide guidance in

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resolving Movant’s challenge to his conviction on Count 4. The record reflects that

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neither party objects to a stay at this juncture. 1

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Therefore,

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IT IS ORDERED staying this matter pending the Ninth Circuit’s decision in

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United States v. Begay, No. 3:13-cr-08073-NVW-1 (D. Ariz. Jan. 29, 2014), appeal

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docketed, No. 14-10080 (9th Cir. Feb. 20, 2014). Within fourteen days after the decision

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in Begay is issued, the Government shall file a Supplemental Response. Movant may file

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a Supplemental Reply within seven days after service of the Supplemental Response.

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Dated this 27th day of April, 2018.

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The Government initially requested that the Court stay the case, which the Court
denied. (Docs. 4, 12). Although Movant opposed the Government’s September 2016
Motion to Stay (Doc. 4), Movant asserted in his Objections to the Report and
Recommendation that this matter should be stayed pending Dimaya and Begay. (Doc. 29
at 3).
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