McCreary v. United States

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION 3:16-cv-302-RJC (3:06-cr-190-RJC-1)

JUSAMUEL RODRIGUEZ McCREARY, ) ) Petitioner, ) ) vs. ) ORDER ) UNITED STATES OF AMERICA, ) ) Respondent. ) _________________________________________ )

THIS MATTER is before the Court on a Motion to Stay, (Doc. No. 8), filed by the Government. Petitioner filed a 28 U.S.C. § 2255 Motion to Vacate through counsel raising a claim pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). (Doc. No. 1). This action was stayed for several years pending, inter alia, the Fourth Circuit Court of Appeals’ consideration of United States v. Ali, No. 15-4433. (Doc. No. 5). The Court recently ordered the parties to file a Response indicating why this matter should not proceed based on the United States Supreme Court’s decision in United States v. Davis, No. 18-431. (Doc. No. 7). The Government now seeks to stay this action pending the Fourth Circuit’s consideration of United States v. Taylor, No. 19-7616, in which a certificate of appealability was granted, in part, on the issue of whether a conviction pursuant to 18 U.S.C. § 924(c) is subject to vacatur when the indictment charges multiple predicates, one of which is invalid. Counsel for Petitioner consents to the Motion to Stay. (Doc. No. 8 at 2). The Court finds that the Motion to Stay is in the interest of justice and judicial economy and will be granted. 1 IT IS, THEREFORE, ORDERED that: 1. The Government’s Motion to Stay, (Doc. No. 8), is GRANTED. 2. This case is held in abeyance pending the Fourth Circuit’s consideration of Taylor, No. 19-7616. The Government shall have sixty (60) days following the Fourth Circuit’s issuance of its mandate in Taylor file an answer, motion, or other response to the § 2255 Motion to Vacate.

Signed: May 18, 2020

Robert J. Conrad, Jr. Rel, United States District Judge ae