McKenzie v. United States of America

Filing 11

ORDER by Chief Magistrate Judge Karen B. Molzen that Defendant McKenzie will be given the opportunity to file by January 18, 2017, a supplemental brief addressing whether the granting of the 8 United States' MOTION for Order to Stay Proceedings Pending The Supreme Court's Decision in United States v. Beckles will effectively deny him of his right to timely resolution of the § 2255 motion. (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff,
v.

CIV 16-0740 JB/KBM
CR 08-1669 JB

RICHARD McKENZIE,
Defendant.

ORDER FOR SUPPLEMENTAL BRIEFING ON MOTION FOR BECKLES STAY
THIS MATTER is before the Court on the United States’ opposed Motion for Stay
of Proceedings Pending the Supreme Court’s Decision in United States v. Beckles, CV
Doc. 8 & CR Doc. 224, filed October 31, 2016. The Honorable James O. Browning
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. 3. Having reviewed the motion to stay, the pleadings on file and the relevant
authorities, the Court concludes that supplemental briefing is appropriate.
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.
Defendant McKenzie did not file a brief in opposition to the motion, but instead filed
a “Notice of Pertinent Authority” and attached United States v. Miller, No. 16-8080, slip op.
(10th Cir. Nov. 2, 2016), one of three recent unpublished decisions by the Tenth Circuit
addressing the propriety of a Beckles stay. Those decisions 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, however, it does not appear that Defendant McKenzie would now be eligible
for a time-served sentence without the career offender guideline enhancement if
successful on the § 2255 motion. If a stay does not effectively operate as a dismissal of
Defendant McKenzie’s claim, this Court has discretion to grant a Beckles stay. See Miller,
slip op. at 6 (writ of mandamus to vacate Beckles stay found necessary because “staying
resolution of his motion until the Supreme Court resolves Beckles will irreparably damage
Miller by resulting in his unnecessary confinement.”).
Wherefore,
2

IT IS HEREBY ORDERED that Defendant McKenzie will be given the opportunity
to file by January 18, 2017, a supplemental brief addressing whether the granting of the
motion to stay will effectively deny his right to timely resolution of his § 2255 motion.

________________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE

3