Lewis v. United States of America
ORDER by Chief Magistrate Judge Karen B. Molzen denying Government's request for a stay pending Beckles decision and setting hearing for oral argument on current briefing and/or supplemental briefs, if either party wishes to file one. (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
CIV 16-0737 LH/KBM
CR 08-0057 LH
JABSIE DWAYNE LEWIS,
ORDER DENYING STAY AND SETTING HEARING FOR ORAL ARGUMENT
THIS MATTER is before the Court on Defendant’s Emergency Motion to Correct
Sentence under 28 U.S.C. § 2255 (CV Doc. 1, CR Doc. 135). The Honorable C. LeRoy
Hansen referred this matter to me in accordance with the provisions of 28 U.S.C.
§§ 636(b)(1)(B), (b)(3), and Va. Beach Fed. Sav. & Loan Ass’n v. Wood, 901 F.2d 849
(10th Cir. 1990), to conduct hearings, if warranted, including evidentiary hearings, and to
perform any legal analysis required to recommend to the Court an ultimate disposition of
the case. CV Doc. 2. The Court has reviewed the motion, the memoranda submitted by
the parties and the relevant authorities.
The Government contends that this matter should be stayed until the Supreme
Court hands down its decision in Beckles v. United States, (S. Ct. No. 15-8544) as to:
“(1) whether the holding in Johnson v. United States [135 S. Ct. 2551 (2015)] applies to
the residual clause of USSG § 4B1.2; and (2) if so, whether Johnson applies retroactively
to Sentencing Guidelines cases on collateral review in which the sentence was enhanced
by the residual clause in § 4B1.2.” CV Doc. 137 at 11. The Supreme Court heard
arguments in the Beckles case on November 28th, and a decision is expected before the
summer recess in 2017. Clearly, the Court would be aided by such guidance.
Recent Tenth Circuit unpublished decisions, however, persuade this Court that it
must address the merits of a Johnson claim where the defendant “will effectively be
denied his right to timely resolution of his § 2255 motion.” United States v. Smith, No.
16-8091 (10th Cir. Nov. 9, 2016), quoting United States v. Miller, No. 16-8080, slip op. at
7(10th Cir. Nov. 2, 2016) (unpublished) (issuing writ of mandamus and directing district
court to vacate stay and address merits); United States v. Carey, No. 16-8093 (10th Cir.
Nov. 4, 2016) (unpublished) (same). Here, Defendant Lewis contends that he would now
be eligible for a time-served sentence without the career offender guideline enhancement
if successful on the § 2255 motion, Doc. 142; thus, a Beckles stay is inappropriate.
Having reviewed the written briefs, the Court is concerned that certain preliminary
issues have yet to be addressed. Specifically, the arguments of counsel do not discuss
the effect of parties’ binding agreement to a sentence of 188 months of imprisonment.
See e.g., United States v. Grayson, 387 F. App'x 888, 889 (10th Cir. 2010) (“Grayson may
not seek a sentence reduction under [18 U.S.C. § 3582(c)(2) ] as his sentence was part of
a plea agreement specifying a term of imprisonment pursuant to Rule 11(c)(1)(C).”). Nor
have the parties addressed the effect of the waiver of appeal and collateral relief rights set
forth in the plea agreement.1 See United States v. Frazier-LeFear, No. 16-6128, 2016 WL
On direct appeal, the Tenth Circuit expressly granted the Government’s motion to
enforce Mr. Lewis’ appeal waiver provision in his plea agreement. CR Doc. 114-1. That
provision at page 10 of the Plea Agreement states that “[i]n addition, [Mr. Lewis] agrees to
7240134 at *5 (10th Cir. Dec. 15, 2016) (unpublished) (enforcing lawful waiver as to a
Johnson collateral challenge to the application of the career offender guideline “even if
the alleged error [ ] arises out of a subsequent change in law and [ ] is of constitutional
The Court is inclined to hear oral argument from counsel on these issues, as well as
those issues discussed in their briefing, rather than delay the proceedings further by
ordering supplemental briefing. However, the Court requests that Counsel confer to see if
either side desires to file a supplemental written brief, and if so, submit a proposed
timetable for such briefing. If not, the parties are to contact my chambers staff with
available dates for setting oral arguments.
IT IS SO ORDERED.
UNITED STATES CHIEF MAGISTRATE JUDGE
waive any collateral attack to [his] conviction(s) pursuant to 28 U.S.C. § 2255, except on
the issue of ineffective assistance of counsel.
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