Germano-Tanaka v. USA

Filing 3

ORDER STAYING SECTION 2255 PROCEEDING re #1 - Signed by JUDGE J. MICHAEL SEABRIGHT on 7/5/2024. (jni)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff,
v.

CR. NO. 20-00088 JMS
CIV. NO. 24-00274 JMS-KJM
ORDER STAYING SECTION 2255
PROCEEDING

BRANDON GERMANO-TANAKA,
Defendant.

ORDER STAYING SECTION 2255 PROCEEDING
On June 26, 2024, Defendant Brandon Germano-Tanaka
(“Defendant”) filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence. ECF No. 68.1 Defendant argues in this § 2255 proceeding that
because the crime of being a felon in possession of a firearm, “has been found
unconstitutional in the 9th Circuit court,” id. at PageID.313, his conviction under
18 U.S.C. § 922(g) should be vacated and he should be resentenced on his
remaining count. 2

1
2

References to filings in this Order are to the docket in Cr. No. 20-00088 JMS.

Defendant was sentenced on two counts: (1) possession of a firearm in furtherance of a
drug trafficking crime under 18 U.S.C. § 924(c); and (2) being a felon in possession of a firearm
and ammunition under 18 U.S.C. § 922(g). ECF No. 62 at PageID.288. On December 7, 2023,
(continued. . . )

Defendant is partly correct. United States v. Duarte, 101 F.4th 657
(9th Cir. 2024), recently determined that § 922(g) may violate the Second
Amendment as applied to particular underlying felonies. It did not hold, as
Defendant suggests, that § 922(g) is unconstitutional in all applications. And, on
May 14, 2024, the United States filed a petition for rehearing en banc, and Duarte
filed a response to that petition on May 30, 2024.
Although no mandate has issued, Duarte “constitutes binding
authority and must be followed . . . .” In re Zermeno-Gomez, 868 F.3d 1048, 1053
(9th Cir. 2017). But, of course, until a mandate issues, “a published decision by a
panel of this court is subject to modification, withdrawal, or reversal.” Id. Thus,
reliance on a pre-mandate opinion remains a “gamble.” Carver v. Lehman, 558
F.3d 869, 878 n.16 (9th Cir. 2009). If the Ninth Circuit grants en banc review, the
three-judge opinion no longer carries precedential weight. Fed. R. App. P. 35; 9th
Cir. R. 35-3; 9th Cir. General Order 5.5d.
Defendant’s motion hinges on Duarte. And because a petition for
rehearing en banc is pending in the Ninth Circuit, the court determines that it is in
the interests of justice to stay the pending § 2255 motion until the Ninth Circuit
determines whether to hear the matter en banc.

he was sentenced to sixty months as to the § 924(c) charge and 36 months as to the § 922(g)
charge, with both counts to run consecutively. Id. at PageID.289.
2

District courts have “broad discretion to stay proceedings as an
incident to [their] power to control [their] own docket[s].” Clinton v. Jones, 520
U.S. 681, 706–07 (1997); accord Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)
(“[T]he power to stay proceedings is incidental to the power inherent in every court
to control the disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants.”).
A trial court may, with propriety, find it is efficient for its
own docket and the fairest course for the parties to enter
a stay of an action before it, pending resolution of
independent proceedings which bear upon the case. This
rule applies whether the separate proceedings are
judicial, administrative, or arbitral in character, and does
not require that the issues in such proceedings are
necessarily controlling of the action before the court.
Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863–64 (9th Cir. 1979). See
also Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1465 (9th
Cir. 1983).
In exercising its judgment, the court “must weigh competing interests
and maintain an even balance.” Landis, 299 U.S. at 254–55. The Ninth Circuit set
out the following framework for analyzing motions to stay pending resolution of
related matters:
Where it is proposed that a pending proceeding be
stayed, the competing interests which will be affected by
the granting or refusal to grant a stay must be weighed.
Among those competing interests are the possible
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damage which may result from the granting of a stay, the
hardship or inequity which a party may suffer in being
required to go forward, and the orderly course of justice
measured in terms of the simplifying or complicating of
issues, proof, and questions of law which could be
expected to result from a stay.
Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (quoting CMAX, Inc.
v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)).
Here, although there is a chance that Defendant could be prejudiced
by a stay, it is not in the least clear that Defendant would even prevail under
Duarte. Defendant assumes, incorrectly, that Duarte holds his § 922(g) conviction
per se unlawful. But, as stated above, Duarte requires a case-by-case as-applied
analysis to determine if an underlying felony conviction can serve as a predicate to
a § 922(g) charge based on “Founding-era felony analogues.” Duarte, 101 F.4th at
690. Should the court proceed under Duarte now, this case would require a
detailed and complicated analysis—requiring significant input from the parties—as
to whether Defendant’s underlying felonies provide that sufficient analogue.3

3

Another complication arises from Duarte’s “Founding-era felony analogues” test—the
Duarte formulation may very well now be inconsistent with a potentially broader analogue test
set forth in United States v. Rahimi, ___ U.S. ___, 2024 WL 3074728 (June 21, 2024). Rahimi
reasoned that
the appropriate analysis involves considering whether the
challenged regulation is consistent with the principles that
underpin our regulatory tradition. A court must ascertain whether
the new law is relevantly similar to laws that our tradition is
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(continued. . . )

But before proceeding with that complex analysis, it is in the interests
of justice to await the Ninth Circuit’s decision on the pending Duarte petition for
rehearing en banc, i.e., whether or not to take Duarte en banc (and thus vacate the
three-judge panel opinion). Accordingly, the court STAYS Defendant’s § 2255
motion pending the Ninth Circuit’s decision on the pending petition for rehearing
en banc. The United States is DIRECTED to file a notice with this court within
one week of when the Ninth Circuit reaches a decision on that petition.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 5, 2024.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

United States v. Germano-Tanaka, Cr. No. 20-00088 JMS and Civ. No. 24-00274 JMS-KJM,
Order Staying § 2255 Proceeding

understood to permit, apply[ing] faithfully the balance struck by
the founding generation to modern circumstances.
2024 WL 3074728, at *6 (internal citations and quotation omitted). Rahimi explained that
[S]ome courts have misunderstood the methodology or our recent
Second Amendment cases [which] were not meant to suggest a law
trapped in amber. . . . [T]he Second Amendment permits more
than just those regulations identical to ones that could be found in
1791. Holding otherwise would be as mistaken as applying the
protections of the right only to muskets and sabers.
Id.
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