Moody v. USA

Filing 4

ORDER granting Government's 3 Motion to place case in Abeyance. The government shall have 60 days from the date the Supreme Court decides Beckles within which to file its response in this matter.Signed by District Judge Martin Reidinger on 9/2/2016. (nvc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-CV-00192-MR
CRIMINAL CASE NO. 1:02-CR-00004-MR-4

HARRY NOLAN MOODY,

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

ORDER

THIS MATTER is before the Court on the motion of the United States
requesting that the Court enter an order holding this action in abeyance. [CV
Doc. 3].1 According to the government’s motion, defense counsel does not
object to its request. [Id.].
Petitioner was convicted of conspiracy to manufacture and distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. [CR Doc.
208].

The presentence report noted that Petitioner had prior qualifying

convictions – specifically, two 1987 North Carolina convictions for assault

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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-00192-MR, or the letters “CR” denoting the document is
listed on the docket in the criminal case file number 1:02-cr-00004-MR-4.

inflicting serious injury and a 1987 North Carolina conviction for assault on a
law officer -- that triggered the Career Offender enhancement under section
4B1.2 of the Sentencing Guidelines. The Court sentenced Petitioner as a
Career Offender to a total term of imprisonment of 360 months. [Id.].
On June 21, 2016, Petitioner commenced this action by filing a petition
pursuant to 28 U.S.C. § 2255. [CV Doc. 1]. In his petition, Petitioner
contends that, in light of Johnson v. United States, 135 S. Ct. 2551 (2015),
his prior North Carolina convictions for assault no longer qualify as a “crime
of violence” under the Guidelines. [Id. at 3-4]. Consequently, Petitioner
argues his Career Offender designation is improper and thus his sentence is
unlawful. [Id.].
In response to the petition, the government has filed a motion to hold
this proceeding in abeyance. [CV Doc. 3]. The government notes that this
case will be affected by the Supreme Court’s decision next Term in Beckles
v. United States, 616 Fed. Appx. 415 (11th Cir.), cert. granted, 2016 WL
1029080 (U.S. June 27, 2016) (No. 15-8544). [Id. at 2]. One of the questions
presented in Beckles is whether Johnson applies retroactively to cases
collaterally challenging federal sentences enhanced under the residual
clause in U.S.S.G. § 4B1.2(a)(2). The residual clause invalidated in Johnson

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is identical to the residual clause in the Career Offender provision of the
Guidelines, § 4B1.2(a)(2) (defining "crime of violence").
Based upon the reasons given by the government, and without
objection by Petitioner, 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. 3], is hereby GRANTED and this matter is
hereby held in abeyance pending the Supreme Court’s decision in Beckles.
Thereafter, the government shall have 60 days from the date the Supreme
Court decides Beckles within which to file its response in this matter.
IT IS SO ORDERED.

Signed: September 2, 2016

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