Littlejohn v. USA

Filing 6

ORDER granting 5 Motion to Stay and this matter is held in abeyance pending the Supreme Courts decision in Beckles. Thereafter, Respondent shall have 60 days from the date the Supreme Court decides Beckles to file a response to Petitioners § 2255 motion to vacate. Signed by District Judge Richard Voorhees on 10/7/2016. (kby)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:16-cv-209-RLV
(1:90-cr-231-5)

THOMAS FLOYD LITTLEJOHN,

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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 upon Respondent’s motion requesting the Court
enter an order holding this action in abeyance. (Doc. 5.) Petitioner is represented by the Federal
Defenders of Western North Carolina.
On September 13, 1991, a jury found Petitioner guilty of conspiracy to possess with
intent to distribute, and distribute cocaine and cocaine base; thirteen counts of possession with
intent to distribute cocaine, and aiding and abetting the same; twelve counts of distributing
cocaine, and aiding and abetting the same; possession with intent to distribute cocaine base, and
aiding and abetting the same; and distributing cocaine base, and aiding and abetting the same.
The presentence report (PSR) found that Petitioner had two qualifying prior convictions that
triggered the career-offender enhancement under U.S.S.G. § 4B1.2: (1) a 1983 North Carolina
conviction for felony discharge of a weapon in occupied property and assault with a deadly
weapon inflicting serious injury; and (2) a 1988 North Carolina conviction for possession with
intent to sell and deliver a schedule VI substance. On December 10, 1991, the Court imposed an
enhanced sentence of 360 months in prison. (Motion to Vacate 1-2, Doc. No. 1.)
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On June 23, 2016, Petitioner commenced this action by filing a motion to vacate pursuant
to 28 U.S.C. § 2255. (Doc. No. 1.) Petitioner challenges this Court’s application of the careeroffender provision of the United States Sentencing Guidelines in determining his advisory
guideline range, asserting that his prior North Carolina conviction for discharge of a weapon in
occupied property and assault with a deadly weapon inflicting serious injury no longer qualifies
as a “crime of violence” under the Guidelines in the light of the Supreme Court’s decision in
Johnson v. United States, 135 S. Ct. 2551 (2015).
On September 1, 2016, Respondent filed the instant motion to stay and hold these
proceedings in abeyance pending the United States Supreme Court’s decision in Beckles v.
United States, No. 15-8544. (Doc. No. 5.) According to Respondent, Beckles presents three
questions that bear on Petitioner’s argument: (1) “Whether Johnson applies retroactively to
collateral cases challenging federal sentences enhanced under the residual clause in U.S.S.G. §
4B1.2(a)(2)”; (2) “Whether Johnson’s constitutional holding applies to the residual clause in
U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable
on collateral review”; and (3) “Whether mere possession of a sawed-off shotgun, an offense
listed as a ‘crime of violence’ only in the commentary to U.S.S.G. § 4B1.2, remains a ‘crime of
violence’ after Johnson.”1 According to Respondent’s motion, counsel for Petitioner does not
object to the request. (Doc. No. 5 at 2-3.)
For the reasons stated by Respondent, and without objection from Petitioner, the Court
concludes that the motion to stay should be granted.
IT IS, THEREFORE, ORDERED that Respondent’s motion to place this case in

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Questions Presented, Beckles v. United States, No. 15-8544 (U.S. cert. granted June 27, 2016), available at
http://www.supremecourt.gov/qp/15-08544qp.pdf.

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abeyance, (Doc. No. 5), is hereby GRANTED and this matter is held in abeyance pending the
Supreme Court’s decision in Beckles. Thereafter, Respondent shall have 60 days from the date
the Supreme Court decides Beckles to file a response to Petitioner’s § 2255 motion to vacate.
IT IS SO ORDERED.

Signed: October 7, 2016

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