Unverzagt v. USA

Filing 11

ORDER STAYING PROCEEDINGS. Signed on 3/9/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

NORMAN DALE UNVERZAGT,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 16-03497-CV-S-ODS
Crim. No. 04-03156-01-CR-S-ODS

ORDER STAYING PROCEEDINGS
Pending is Petitioner Norman Dale Unverzagt’s Second Motion to Correct
Sentence under 28 U.S.C. § 2255. Doc. #4. Petitioner seeks to be resentenced
pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015), which held the Armed
Career Criminal Act’s (“ACCA”) residual clause unconstitutional. Specifically, Petitioner
asserts his two convictions for second-degree burglary of buildings do not qualify as
predicate offenses under the ACCA’s “violent felony” provision. 18 U.S.C. § 924(e).
The Eighth Circuit has held second-degree burglary of a building is a predicate offense
under the ACCA’s “violent felony” provision. See United States v. Sykes, 844 F.3d 712,
715 (8th Cir. 2016). The Government, therefore, contends Petitioner’s sentence is still
proper under the ACCA. Doc. #7.
In the reply suggestions in support of his motion, Petitioner notes a petition for
rehearing en banc of the Sykes decision is pending before the Eighth Circuit, and urges
the Court to stay this matter pending resolution of the petition for rehearing en banc.
Doc. #9. “[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.” Landis v. N. Am. Co., 299 U.S. 248, 249
(1936). Thus, district courts have the discretion “to stay proceedings in one suit until the
decision of another.” Id. The Court stays all proceedings in this case until the petition
for rehearing en banc in Sykes is fully resolved by the Eighth Circuit or the United
States Supreme Court.

IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: March 9, 2017

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