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