Banks v. United States of America

Filing 8

MINUTE ORDER by Judge James L. Robart requesting supplemental briefing as detailed in the attached order. The parties shall file the requested briefing no later than March 8, 2017. (lp)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 JEFFREY EMON BANKS, Petitioner, 11 v. CASE NO. C16-0909JLR MINUTE ORDER DIRECTING SUPPLEMENTAL BRIEFING 12 13 UNITED STATES OF AMERICA, Defendant. 14 15 16 17 The following minute order is made by the direction of the court, the Honorable James L. Robart: Jeffrey Emon Banks petitions to vacate, set aside, or correct his sentence under 28 18 U.S.C. § 2255 for ineffective assistance of counsel. (Mot. (Dkt. # 1).) Mr. Banks’s 19 ineffective assistance of counsel claim rests primarily on his trial counsel’s failure to 20 argue that Mr. Banks’s sentence was impermissibly enhanced under the United States 21 Sentencing Guidelines (the “Guidelines”), U.S.S.G. § 2k2.1(a)(4), based on Mr. Banks’s 22 prior conviction for second-degree robbery in Washington State. (Mot. (Dkt. # 1).) The MINUTE ORDER - 1 1 court has held that the recent Supreme Court decision, Johnson v. United States, 2 ---U.S.---, 135 S. Ct. 2551 (2015), applies to invalidate the Guidelines’ residual clause 3 and applies retroactively. Lilley v. United States, No. C16-0410JLR, 2016 WL 6997037, 4 at *7 (W.D. Wash. Nov. 30, 2016); Carpio v. United States, No. C16-0647JLR, 2016 WL 5 6395192, at *3 (W.D. Wash. Oct. 28, 2016). In addition, the court has held that 6 Washington second-degree robbery was a sentence-enhancing predicate felony only by 7 reference to the now-invalidated residual clause of the Guidelines. See Lilley, 2016 WL 8 6997037, at *17-20. 9 The court directs the parties to file simultaneous supplemental briefing on two 10 questions: (1) whether, in addition to stating an ineffective assistance of counsel claim, 11 Mr. Banks’s petition also makes a claim for habeas relief pursuant to Johnson, and (2) the 12 merits of a substantive Johnson claim in Mr. Banks’s case. The parties’ supplemental 13 briefing is due no later than Wednesday, March 8, 2017, and each party’s supplemental 14 brief is limited to twelve (12) pages. Neither party is permitted to file a response or other 15 briefing unless the court orders otherwise. 16 17 Filed and entered this 21st day of February, 2017. 18 WILLIAM M. MCCOOL Clerk of Court 19 s/ Ashleigh Drecktrah Deputy Clerk 20 21 22 MINUTE ORDER - 2

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