Barnette v. USA

Filing 127

ORDER granting 126 Motion to Stay until the United States Supreme Court decides United States v. Davis, No. 18-43. The United States shall have 60 days after the Supreme Court issues its decision to respond to Petitioners supplemental Motion to Vacate.Signed by District Judge Max O. Cogburn, Jr on 4/8/2019. (ams)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12-cv-00327-MOC
(3:97-cr-00023-MOC-1)
AQUILIA MARCIVICCI BARNETTE,

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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 the United States’ Motion to continue the stay
of these 28 U.S.C. § 2255 proceedings until the United States Supreme Court decides United
States v. Davis, No. 18-431. (Doc. No. 126.) Petitioner does not oppose the Motion. (Doc. No.
126 at 2.)
On December 8, 2016, the Court entered an Order holding this action in abeyance
pending decisions by the United States Supreme Court in Lynch v. Dimaya, No. 15-1498,
decided sub nom Sessions v. Dimaya, 138 S.Ct. 1204 (2018), and the Fourth Circuit Court of
Appeals in United States v. Simms, No. 15-4640. (Doc. No. 124.) On November 9, 2018, the
Court granted the United States 60 days to respond to Petitioner’s supplemental motion to vacate
after the Fourth Circuit’s decision in United States v. Simms, No. 15-4640, “becomes final after
en banc review.” (Doc. No. 125.) The Supreme Court granted a petition for a writ of certiorari
in Davis on the same question considered by Simms —whether the residual clause of the
definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B)— is unconstitutionally vague. And
the Fourth Circuit stayed its mandate in Simms pending the Supreme Court’s decision in Davis.
Order, United States v. Simms, No. 15-4640 (Feb. 4, 2019), Doc. No. 92.
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The United States requests that this action remain in abeyance until the Supreme Court
issues its decision in Davis. The United States also seeks 60 days after the Supreme Court issues
its decision to respond to Petitioner’s supplemental § 2255 Motion. For good cause shown and
with the consent of opposing counsel, the Motion shall be granted.
IT IS, THEREFORE, ORDERED that the United States’ Motion to continue the stay
of these proceedings until the United States Supreme Court decides United States v. Davis, No.
18-43 (Doc. No. 126) is GRANTED. The United States shall have 60 days after the Supreme
Court issues its decision to respond to Petitioner’s supplemental Motion to Vacate.

Signed: April 8, 2019

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