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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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JEFFREY EMON BANKS,
Petitioner,

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v.

CASE NO. C16-0909JLR
MINUTE ORDER DIRECTING
SUPPLEMENTAL BRIEFING

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UNITED STATES OF AMERICA,
Defendant.

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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

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U.S.C. § 2255 for ineffective assistance of counsel. (Mot. (Dkt. # 1).) Mr. Banks’s

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ineffective assistance of counsel claim rests primarily on his trial counsel’s failure to

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argue that Mr. Banks’s sentence was impermissibly enhanced under the United States

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Sentencing Guidelines (the “Guidelines”), U.S.S.G. § 2k2.1(a)(4), based on Mr. Banks’s

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prior conviction for second-degree robbery in Washington State. (Mot. (Dkt. # 1).) The

MINUTE ORDER - 1

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court has held that the recent Supreme Court decision, Johnson v. United States,

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---U.S.---, 135 S. Ct. 2551 (2015), applies to invalidate the Guidelines’ residual clause

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and applies retroactively. Lilley v. United States, No. C16-0410JLR, 2016 WL 6997037,

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at *7 (W.D. Wash. Nov. 30, 2016); Carpio v. United States, No. C16-0647JLR, 2016 WL

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6395192, at *3 (W.D. Wash. Oct. 28, 2016). In addition, the court has held that

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Washington second-degree robbery was a sentence-enhancing predicate felony only by

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reference to the now-invalidated residual clause of the Guidelines. See Lilley, 2016 WL

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6997037, at *17-20.

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The court directs the parties to file simultaneous supplemental briefing on two

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questions: (1) whether, in addition to stating an ineffective assistance of counsel claim,

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Mr. Banks’s petition also makes a claim for habeas relief pursuant to Johnson, and (2) the

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merits of a substantive Johnson claim in Mr. Banks’s case. The parties’ supplemental

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briefing is due no later than Wednesday, March 8, 2017, and each party’s supplemental

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brief is limited to twelve (12) pages. Neither party is permitted to file a response or other

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briefing unless the court orders otherwise.

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Filed and entered this 21st day of February, 2017.

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WILLIAM M. MCCOOL
Clerk of Court

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s/ Ashleigh Drecktrah
Deputy Clerk

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MINUTE ORDER - 2