Daws v. United States of America

Filing 11

ORDER DENYING 3 MOTION AS MOOT AND HOLDING CASE IN ABEYANCE. Signed by Judge J. Daniel Breen on 4/19/18. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
KEVIN DAWS,
Petitioner,
v.

No. 1:15-cv-01214-JDB-egb

UNITED STATES OF AMERICA,
Respondent.

ORDER DENYING MOTION AS MOOT
AND
HOLDING CASE IN ABEYANCE

Before the Court is the request of Petitioner, Kevin Daws, for relief pursuant to Johnson
v. United States, 135 S. Ct. 2551, 2557 (2015) (Docket Entry (“D.E.”) 1), and his motion to
proceed in forma pauperis (D.E. 3). For the following reasons, the motion is DENIED as moot
and the proceedings in this case are HELD IN ABEYANCE.
Daws filed his pro se motion to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 on August 24, 2015, seeking relief under Johnson. In November 2017, the United
States Probation Office (“USPO”) prepared a revised memorandum addressing United States v.
Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc), and opining that Petitioner is not entitled to § 2255
relief. After appointing counsel for Petitioner (D.E. 6), the Court directed him to respond to the
USPO memorandum and indicate whether he still believed he was entitled to relief1 (D.E. 9).
The Court also ordered Respondent, United States of America, to respond to Petitioner’s
statement if he insisted that relief was still warranted.

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In its order appointing counsel, the Court found that Petitioner is indigent. His motion to
proceed in forma pauperis (D.E. 3) is therefore DENIED as moot.

On January 13, 2018, Daws, through counsel, filed a brief addressing the USPO
memorandum and arguing that he remained entitled to relief under § 2255. (D.E. 10.) The
Government did not respond to the brief and the time for doing so has passed.
Respondent has, in another case, addressed the very arguments that Petitioner advances
here. (See Patterson v. United States, 1:15-cv-01300-JDB-egb, D.E. 17.) In that case, the
United States insisted that relief was not warranted or, in the alternative, requested that the Court
hold the proceedings in abeyance pending resolution of its petition for writ of certiorari in Stitt.
The Court granted the Government’s alternative request that the case be held in abeyance. (Id.,
D.E. 18.)
A Westlaw search reveals that Respondent’s petition for writ of certiorari remains
pending before the Supreme Court. See United States v. Stitt, 2017 WL 5665444 (U.S. Nov. 21,
2017) (No. 17-765). Because the United States did not, as ordered, respond to Petitioner’s brief
in this case, the Court assumes that it has no objection to having the matter held in abeyance
pending resolution of its appeal in Stitt.
Accordingly, the proceedings in this case are HELD IN ABEYANCE pending further
notice. Respondent shall notify the Court of the Supreme Court’s certiorari decision in Stitt
within fourteen days of issuance.
IT IS SO ORDERED this 19th day of April 2018.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

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