Kincaid v. USA

Filing 9

ORDER granting 8 Motion to Stay, and this matter is held in abeyance pending the Supreme Court's decision in United States v. Brown. Petitioner shall have 30 days after a ruling by the Supreme Court in Brown in which to file a Reply. Signed by District Judge Martin Reidinger on 3/13/2018. (khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00194-MR
CRIMINAL CASE NO. 1:96-cr-00013-MR-1

ALVIN LEWIS KINCAID,

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Petitioner,
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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 Petitioner’s Unopposed
Motion to Hold Petitioner’s Motion to Vacate in Abeyance [Doc. 8].
On June 21, 2016, the Petitioner filed a Motion to Vacate under 28
U.S.C § 2255 arguing that his career offender sentence violated due process
of law under Johnson v. United States, 135 S. Ct. 2551 (June 26, 2015). The
Court placed the Petitioner’s motion in abeyance pending the outcome of
Beckles v. United States, Supreme Court No. 15-8455. In Beckles, the
petitioner argued that his career offender sentence was erroneously
enhanced by an unconstitutionally vague residual clause of U.S.S.G. §
4B1.2. The Supreme Court decided Beckles on March 6, 2017, and held

that the advisory Guidelines were not subject to vagueness challenges.
Beckles v. United States, 137 S. Ct. 886 (March 6, 2017). Beckles, however,
did not resolve the question of whether Johnson’s constitutional holding
applies retroactively to those defendants, like the Petitioner, who were
sentenced before United States v. Booker, 543 U.S. 220 (2005), when the
Sentencing Guidelines were mandatory rather than advisory. The Petitioner
has filed a Supplemental Memorandum asserting that the decision in
Beckles has not foreclosed his argument that his mandatory Guidelines
sentence is unconstitutional under Johnson.
Upon motion of the Petitioner, this Court placed the Petitioner’s § 2255
motion in abeyance pending the Fourth Circuit’s decision in United States v.
Brown, No. 16-7056.

In Brown, the defendant argued that his career

offender sentence should be vacated under Johnson because he was
classified as a career offender when the guidelines were mandatory. On
August 21, 2017, the Fourth Circuit held in United States v. Brown, 868 F.3d
297, 299 (4th Cir. 2017), that because neither Johnson, nor Beckles, nor any
other Supreme Court case has recognized the specific right to relief for
individuals sentenced as career offenders under the mandatory guidelines,
the Court felt “compelled to affirm the dismissal of Petitioner’s motion as

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untimely under 28 U.S.C. § 2255(f)(3).” The Fourth Circuit denied Brown’s
petition for rehearing and rehearing en banc on February 26, 2018.
Petitioner’s counsel has been informed by Brown’s counsel that Brown
will be filing a petition for writ of certiorari to the Supreme Court of the United
States.

Therefore, in the interest of judicial economy, in this case,

Petitioner’s counsel respectfully requests that this Court hold his Motion to
Vacate in abeyance pending the Supreme Court’s resolution of Brown.
Petitioner’s counsel also requests thirty (30) days after a ruling by the
Supreme Court in Brown to file a reply. The Government consents to this
abeyance request.
For the reasons stated in the Petitioner’s motion, and for cause shown,
IT IS, THEREFORE, ORDERED that the Petitioner’s Unopposed
Motion to Hold Petitioner’s Motion to Vacate in Abeyance [Doc. 8] is hereby
GRANTED, and this matter is held in abeyance pending the Supreme
Court’s decision in United States v. Brown. Petitioner shall have thirty (30)
days after a ruling by the Supreme Court in Brown in which to file a Reply.
IT IS SO ORDERED.

Signed: March 13, 2018

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