Shoemake v. USA

Filing 12

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Court's Orders dated September 28, 2015, are VACATED. IT IS FURTHER ORDERED that the Clerk is directed to place this case on the open docket. IT IS FURTHER ORDERED that this case is held in ABEYANCE until further notice from the Court. Signed by District Judge Stephen N. Limbaugh, Jr on 10/9/2015. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
CHRISTOPHER ERIC SHOEMAKE,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 1:15CV139 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on its own motion. Plaintiff moved for § 2255 relief
under Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Court held that the residual
clause of the Armed Career Criminal Act (ACCA) was void for vagueness under the Due
Process Clause.

Movant was sentenced as a Career Offender under Chapter Four of the

Guidelines, not under the ACCA. Therefore, the Court dismissed his motion because vagueness
challenges have never been allowed against the Guidelines. See United States v. Wivell, 893
F.2d 156, 160 (8th Cir. 1990) (“the limitations the Guidelines place on a judge’s discretion
cannot violate a defendant’s right to due process by reason of being vague.”).
The Court of Appeals for the Eighth Circuit has cast the holding of Wivell into doubt. In
United States v. Thomas, No. 14-2635 (8th Cir. Oct. 9, 2015), the majority implied that the
Guidelines proscribe conduct in the way that statutes do and are thus subject to due process
challenges. Id. at 3. The dissent, however, suggested that any challenge to circuit precedent “be
directed to the full court in a suggestion for en banc review.” Id. at 5 (Colloton, J.).
Because this Court’s judgment is not yet final, the Court finds it judicious to reopen this
case and to hold it in abeyance pending the finality of the decision in Thomas.

Accordingly,
IT IS HEREBY ORDERED that the Court’s Orders dated September 28, 2015, are
VACATED.
IT IS FURTHER ORDERED that the Clerk is directed to place this case on the open
docket.
IT IS FURTHER ORDERED that this case is held in ABEYANCE until further notice
from the Court.
Dated this 9th day of October, 2015.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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