Lowery v. USA

Filing 4

ORDER granting 3 Motion to Stay. Respondent shall have 45-days after the mandates issue in United States v. Ali and United States v. Simms to file a response to Petitioners § 2255 Motion to Vacate. Signed by District Judge Robert J. Conrad, Jr on 9/6/2016. (Pro se litigant served by US Mail.) (tmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-00226-RJC
(3:11-cr-00111-RJC-DSC-2)
NICHOLAS LOWERY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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ORDER

THIS MATTER is before the Court on consideration of the Respondent’s motion to stay
disposition of this collateral proceeding which is filed pursuant to 28 U.S.C. § 2255. (Doc. No.
3).
On December 15, 2011, Petitioner was convicted on one count of conspiracy to interfere
with commerce by threats or violence, in violation of 18 U.S.C. § 1951(a) (Count 1); one count
of conspiracy to use or carry a firearm during and in relation to a crime of violence and a drug
trafficking crime, in violation of 18 U.S.C. § 924(o) (Count 3), and one count of conspiracy to
distribute and possess with intent to distribute at least 5 kg of cocaine, in violation of 21 U.S.C. §
841(b)(1)(A) (Count 2). Petitioner was sentenced to concurrent terms of 168-months in prison
and his judgment was affirmed on appeal.
In his § 2255 motion, Petitioner contends, among other things, that his conviction on
Count 3 should be vacated because it no longer services as a predicate “crime of violence” to
support his conviction on the Hobbs Act robbery charged in Count 1. (3:16-cv-00226, Doc. No.
1-1: Petitioner’s Mem. at 4). Petitioner relies on the Supreme Court’s decision in United States v.
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Johnson, 135 S. Ct. 2551 (2015), in which the Court struck down the residual clause of the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), after concluding that it was
unconstitutionally vague.1
Respondent moves for a 45-day extension from the date the Fourth Circuit issues its
mandate in the cases of United States v. Ali, No. 15-4433, and United States v. Simms, No. 154640, in order to file a response Petitioner’s Motion to Vacate. Respondent contends that the
issue of whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutional in light of
Johnson is presented in the Ali and Simms cases. Both of these cases are tentatively scheduled
for oral argument in October.
The Court finds that because the issues involved in the Ali and Simms case are likely
relevant to resolution of Petitioner’s case, the Court will grant Respondent’s motion.
IT IS, THEREFORE, ORDERED that Respondent’s motion to stay is GRANTED,
(Doc. No. 3), and Respondent shall have 45-days after the mandates issue in United States v. Ali
and United States v. Simms to file a response to Petitioner’s § 2255 Motion to Vacate.
SO ORDERED.
SS
Signed: September 6, 2016

The residual clause of the ACCA provides, in pertinent part, that a “violent felony” is a crime that “involves
conduct that presents a serious risk of physical injury to another.” Id. § 924(e)(2)(B)(ii).
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