McKinney v. USA

Filing 6

ORDER granting 5 Government's Motion to place this case in abeyance pending further orders of this Court. Signed by District Judge Martin Reidinger on 07/29/2016. (thh)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL FILE No. 1:16-CV-149-MR
CRIMINAL FILE No. 1:12-CR-85-MR

DONZELL ALI McKINNEY,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
)
__________________________ )

ORDER

THIS MATTER is before the Court on the motion of the United States
requesting that the Court enter an order holding this habeas action in
abeyance. [CV Doc. 5].1 According to the government’s motion, defense
counsel has consented to its request. [Id.].
McKinney was convicted by plea of conspiracy to commit a Hobbs Act
robbery (18 U.S.C. § 1951(a)), and discharge of a firearm during and in
relation to a crime of violence (18 U.S.C. § 924(c)(1)(A)(iii)). [CR Doc. 22].
The Court sentenced McKinney to a total term of imprisonment of 190

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Citations to the record herein contain the relevant document number referenced
preceded by either the letters “CV” denoting the document is listed on the docket in the
civil case file number 1:16-CV-149-MR, or the letters “CR” denoting the document is listed
on the docket in the criminal case file number 1:12-CR-85-MR.

months (70 months for the Hobbs Act offense and 120 months consecutive
for the firearms offense). [Id. at 2].
On June 3, 2016, McKinney commenced this action by filing a petition
pursuant to 28 U.S.C. § 2255. [CV Doc. 1]. In his petition, McKinney
contends that, in light of Johnson v. United States, 135 S. Ct. 2551 (2015),
conspiracy to commit a Hobbs Act robbery no longer qualifies as a “crime of
violence” under the Guidelines. Consequently, McKinney asserts that since
his Hobbs Act offense no longer qualifies as a “crime of violence,” it likewise
cannot support his § 924(c) conviction and such conviction must be vacated.
[Id.].
In response to McKinney’s petition, the government has filed a motion
to hold this proceeding in abeyance. The government notes that pending in
the Fourth Circuit is the case of United States v. Ali, No. 15-4433 (4th Cir.)
(tentatively calendared for oral argument during the October 25-28, 2016,
session). The Court notes that also pending in the Fourth Circuit is the case
of United States v. Simms, No. 15-4640 (4th Cir.) (tentatively calendared for
oral argument during the October 25-28, 2016, session). The appellants in
Ali and Simms both contend that a Hobbs Act robbery (and additionally in
Ali, conspiracy to commit a Hobbs Act robbery) can no longer be considered

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a “crime of violence” under 18 U.S.C. § 924(c)(3)(B) and thus any § 924(c)
conviction predicated thereon is void.
Based upon the foregoing reasons, and with McKinney’s consent, the
Court concludes that the government’s motion should be granted.
ORDER
IT IS, THEREFORE, ORDERED that the government’s motion to place
this case in abeyance [CV Doc. 5], is hereby GRANTED and this matter is
hereby held in abeyance pending further orders of this Court. The parties
shall notify the Court of the opinions rendered by the Fourth Circuit in the Ali
and Simms cases within seven days after each such matter is decided.
IT IS SO ORDERED.

Signed: July 29, 2016

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