Winters v. United States of America
Filing
38
ORDER granting 33 Motion to Hold Case in Abeyance. Signed by U.S. District Judge Lawrence L. Piersol on 02/28/2019. (SAC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
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STACY WINTERS,
CIV. 16-5052
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Movant,
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CR 03-50003
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vs.
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ORDER
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UNITED STATES OF AMERICA,
Respondent.
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Stacy Winters(Winters)seeks to invalidate his conviction for use ofa firearm in relation to
a crime of violence in violation of 18 U.S.C. § 924(c). Winters filed a 28 U.S.C. § 2255 motion in
which he sought to vacate the § 924(c) conviction based on Johnson v. United States, — U.S. —,
135 S.Ct. 2551 (2015)(holding that residual clause ofthe Armed Career Criminal Act(ACCA)at
18 U.S.C. § 924(e) is unconstitutionally vague). This Court denied relief to Winters in light of
United States v. Prickett, 839 F.3d 697(8th Cir. 2016)(per curiam)(holding that Johnson does not
render § 924(c)(3)(B) unconstitutionally vague), cert, denied., — U.S. ^—, 138 S.Ct. 1976(2018),
but granted Winters a certificate of appealability"[d]ue to the generally unsettled nature ofthe law
on whether the rule announced in Johnson invalidates the residual clause of § 924(c), and the
possibility that the United States Supreme Court someday might resolve the circuit splits that are
developing in this area ofthe law."(Doc. 14.) On appeal,the Eighth Circuit affirmed denial ofrelief
to Winters based on Prickett.(Doc. 19.) Winters filed a petition for a writ of certiorari with the
United States Supreme Court.
On April 17,2018,the United States Supreme Court decided Sessions v. Dimaya,— U.S.—,
138 S.Ct. 1204(2018). The question addressed in Dimaya was whether the residual clause of the
Immigration andNationality Act,18U.S.C.§ 16(b),"suffer[ed]from the same constitutional defect"
as the similarly worded residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B), that the Supreme
Court previously invalidated in Johnson. See Dimaya, 138 S.Ct. at 1210. After analyzing § 16(b),
the Supreme Court observed that, like the residual clause of the ACCA,"the clause had both an
ordinary-case requirement and an ill-defined risk threshold." Id. at 1223. Thus, because "just like
ACCA's residual clause, § 16(b)'produces more unpredictability and arbitrariness than the Due
Process Clause tolerates[,]"' the Supreme Court concluded that § 16(b) was similarly void for
vagueness. Id. {qnoXing Johnson, 135 S.Ct. at 2558).
On June 15,2018, the United States Supreme Court remanded Winters' case to the Eighth
Circuit for further consideration in light oIDimaya.Three circuit courts have held the § 924(c)(3)(B)
residual clause unconstitutionally vague since Dimaya because the language is virtually identical to
to that in §16(b). See United States v. Salas, 889 F.3d 681,686(10th Cir. 2018); United States v.
Eshetu, 898 F3d 36, 37(D.C. Cir. 2018)(on petition for panel rehearing); United States v. Davis,
903 F.3d 483, 486 (5th Cir. 2018). On September 17, 2018, the Eighth Circuit issued a mandate
remanding Winters' case to this Court for further reconsideration in light ofDimaya.
This Court appointed a lawyer to assist Winters in briefing the effect that Dimaya has on the
question whether § 924(c)(3)(B)'s residual clause is unconstitutionally vague,including whether the
Eighth Circuit's decision in Prickett remains binding after Dimaya. Briefing was completed in
December.'The government states that there are a number ofcases pending before the Eighth Circuit
regarding this issue.(Doe. 34 at 2.) On November 29,2018, the government filed a motion to hold
this proceeding in abeyance pending a decision from the Eighth Circuit, arguing that a decision in
this ease "will be subject to upheaval depending upon the outcome ofthe various matters before the
courts of appeals."(Doc. 34.) Winters opposed the motion to hold the case in abeyance.(Doc. 36.)
' The government has conceded that Dimaya undermined Prickett's holding that the
categorical approach applies to § 924(c)'s residual clause, and the government now advocates for
a ease-specific approach. (Doc. 32.)
On January 4,2019,the United States Supreme Court granted the government's petition for
a writ of certiorari in United States v. Davis to determine whether 18 U.S.C. § 924(c)(3)(B) is
unconstitutionally vague. See United States v. Davis, 2019 WL 98544 (S.Ct. Jan. 4, 2019). The
governmentsupplemented its motion to hold this case in abeyance after the petition for certiorari was
granted in Davis.(Doc. 37.)
This Court finds that holding this proceeding in abeyance pending the Supreme Court's
decision in Davis is the most economical method of handling this case. Accordingly,
IT IS ORDERED:
1. Thatthe Government's Motion to Hold Case in Abeyance,doc.33,is granted; and
2. That this case is held in abeyance until the Supreme Court issues the decision in
United States v. Davis, No.18-431.
Dated this 28th day of February, 2019.
BY THE COURT:
Dawrence L. Piersol
ATTEST:
MATTHEW W.TmUEN.CLERK
United States District Judge
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