James v. USA

Filing 21

ORDER this matter is stayed pending further order of the Court. Signed by District Judge Robert J. Conrad, Jr on 3/21/16. (ssh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12-cv-735
3:05-cr-227
AVERY SHANDEL JAMES,

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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

ORDER

THIS MATTER is before the Court on its own motion.
Petitioner has filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, with
alternative claims for relief pursuant to 28 U.S.C. § 2241, writ of coram nobis, and writ of audita
querela, in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). (Doc. No.
3: Motion). Petitioner previously sought relief under § 2255, which was denied. (Case No. 3:09cv-344, Doc. No. 1: Motion; Doc. No. 23: Amended Motion; Doc. No. 39: Order).
The record does not show that Petitioner has obtained authorization from the United States
Court of Appeals for the Fourth Circuit to pursue another § 2255 motion. A similar case is
currently pending before the Fourth Circuit regarding whether a petitioner may obtain Simmons
relief under § 2241 when he is barred from filing a successive § 2255 motion. See United States
v. Surratt, 14-6851, 2015 U.S. App. LEXIS 20881 (4th Cir. 2015) (en banc oral argument
scheduled March 22, 2016). Accordingly, the Court finds that this case should be stayed until the
Fourth Circuit renders a decision in Surratt.

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IT IS, THEREFORE, ORDERED that this matter is STAYED pending further order of
the Court.

Signed: March 21, 2016

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