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6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 7 Damien Miguel Zepeda, 8 Movant/Defendant CV-17-1229-PHX-ROS (JFM) -vs- CR-08-1329-PHX-ROS 9 United States of America, Respondent/Plaintiff. Report & Recommendation 10 on Joint Motion to Stay 11 Under consideration is the Parties' Joint Status Report/Motion to Continue Stay 12 filed September 16, 2019 (Doc. 34). The parties, including Movant who is represented 13 by counsel, seek a continuation of a stay of the briefing schedule pending the Ninth 14 Circuit’s anticipated en banc decision on motion for rehearing in United States v. Orona, 15 923 F.3d 1197 (9th Cir. 2019). The parties previously obtained stays to await decisions 16 by the Supreme Court in Lynch v. Dimaya, No. 15-1498, and the Ninth Circuit in United 17 States v. Begay, No. 14-10080. (See Order 8/14/18, Doc. 25; Order 2/22/19, Doc. 30.) 18 Decisions have now been issued in both of those cases, but the parties contend the 19 requested en banc review in Orona could now be the lynchpin of at least part of this case. 20 Movant’s Motion to Vacate (Doc. 1) was filed on April 25, 2017.1 Movant argues 21 that his convictions under 18 U.S.C. § 924(c) and resulting 85 year sentences must be 22 vacated based on the reasoning and holding of Johnson v. United States, 135 S.Ct. 2551 23 (2015), as construed by Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015).2 A Response 24
25 1 Respondent has conceded that the Motion is timely. (Answer, Doc. 13 at 12.) Accordingly, the recent decision in U.S. v. Blackstone, 903 F.3d 1010 (9th Cir. 2018) does 26 not foreclose Movant’s right to relief. In Blackstone, the court concluded an untimely Johnson claim attacking a conviction under 18 U.S.C. § 924(c) was not subject to 28 27 U.S.C. § 2255(f)(1) which permits a delayed commencement of the limitations period for new rules of law. 1 (Doc. 13) to the Motion to Vacate was filed on July 12, 2017. Movant has requested 2 several extensions to reply (Docs. 14, 16) which were granted (Docs. 15, 17). Movant 3 has not yet replied in support of his Motion to Vacate. 4 The parties previously obtained stays to await in Dimaya and Begay. On April 17, 5 2018, the Supreme Court issued its opinion in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), affirming the Ninth Circuit’s decision extending Johnson to 18 U.S.C. § 16(b), thereby 6 invalidating its residual clause, and effectively that of § 924(c). On August 19, 2019, in 7 United States v. Begay, 2019 WL 3884261 (2019), the Ninth Circuit followed a panel 8 decision in United States v. Orona, 923 F.3d 1197 (9th Cir. 2019) that relied on Fernandez- 9 Ruiz v. Gonzales, 466 F.3d 1121, 1126, 1132 (9th Cir. 2006) (en banc) to conclude that 10 reckless conduct did not qualify as a crime of violence under the elements test. The 11 Government argued (as it does here) unsuccessfully that Fernadez-Ruiz had been 12 effectively overruled by the decision in Voisine v. United States, 136 S. Ct. 2272 (2016). 13 Both Begay and Orona relied on a three-judge panel’s obligation to follow existing 14 Ninth Circuit precedent unless “clearly irreconcilable” with Voisine. See Begay, 2019 WL 15 3884261, at *5 and Orona, 923 F.3d at 1203. On August 22, 2019, the United States filed 16 a petition for rehearing en banc in Orona. (CR 17-17508, Doc. 53.) If the petition for 17 rehearing en banc is granted, the Ninth Circuit will have the opportunity to address 18 whether the Supreme Court’s decision in Voisine is irreconcilable with Fernandez-Ruiz 19 and its determination that “crimes of violence” cannot be committed recklessly. That 20 determination could be dispositive of Movant’s challenged to Count 3, Use of a Firearm 21 During a Crime of Violence (Assault Resulting in Serious Bodily Injury). 22 Necessity of Order – The Court’s Order stayed this case by granting Movant’s 23 various motions. Although not an explicit limitation on the stay, the rationale for the stay 24 was the pendency of Dimaya and Begay. Neither of those cases is now pending. 25 Accordingly, in the ordinary course, the stay would now be vacated, briefing completed, 26 and a ruling issued. Continuing the stay should be effected by a new order. 27 1 Magistrate Judge Authority - The grant of a motion to stay may be deemed 2 dispositive of a habeas petitioner’s claims because it arguably effectively precludes some 3 of the relief sought (e.g. the potential of immediate - or at least sooner – release from 4 custody). See S.E.C. v. CMKM Diamonds, Inc., 729 F.3d 1248, 1260 (9th Cir. 2013) 5 (denial of stay that did not effectively deny any ultimate relief sought was non-dispositive) 6 and PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st Cir. 2010) (ruling on a motion 7 to stay civil litigation pending arbitration is not dispositive of either the case or any claim 8 or defense within it). But see Mitchell v. Valenzuela, 791 F.3d 1166, 1167 (9th Cir. 2015) 9 (denial of stay to exhaust state remedies effectively dispositive of claims); and Bastidas v. 10 Chappell, 791 F.3d 1155, 1157 (9th Cir. 2015) (same). Dispositive matters may not be 11 heard directly by a magistrate judge in a case heard on referral, but must be addressed by 12 way of a report and recommendation. See 28 U.S.C. § 636(b). 13 Here, the fact that Movant has requested the stay diminishes concerns that the 14 motion could be considered dispositive. Nonetheless, in an abundance of caution, the 15 undersigned addresses the matter by way of this Report and Recommendation. 16 Applicable Law - Generally, this court has authority to stay consideration of a case. 17 A court's power to stay proceedings pending the resolution of another case is “incidental 18 to the power inherent in every court to control the disposition of the causes on its docket 19 with economy of time and effort for itself, for counsel, and for litigants.” Landis v. North 20 American Co., 299 U.S. 248, 254 (1936). See also Rhines v. Weber, 544 U.S. 269, 276 21 (2005) (“District courts do ordinarily have authority to issue stays, where such a stay 22 would be a proper exercise of discretion.”) (citing Landis). “A district court has inherent 23 power to control the disposition of the causes on its docket in a manner which will promote 24 economy of time and effort for itself, for counsel, and for litigants.” CMAX, Inc. v. Hall, 25 300 F.2d 265, 268 (9th Cir.
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6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 7 Damien Miguel Zepeda, 8 Movant/Defendant CV-17-1229-PHX-ROS (JFM) -vs- CR-08-1329-PHX-ROS 9 United States of America, Respondent/Plaintiff. Report & Recommendation 10 on Joint Motion to Stay 11 Under consideration is the Parties' Joint Status Report/Motion to Continue Stay 12 filed September 16, 2019 (Doc. 34). The parties, including Movant who is represented 13 by counsel, seek a continuation of a stay of the briefing schedule pending the Ninth 14 Circuit’s anticipated en banc decision on motion for rehearing in United States v. Orona, 15 923 F.3d 1197 (9th Cir. 2019). The parties previously obtained stays to await decisions 16 by the Supreme Court in Lynch v. Dimaya, No. 15-1498, and the Ninth Circuit in United 17 States v. Begay, No. 14-10080. (See Order 8/14/18, Doc. 25; Order 2/22/19, Doc. 30.) 18 Decisions have now been issued in both of those cases, but the parties contend the 19 requested en banc review in Orona could now be the lynchpin of at least part of this case. 20 Movant’s Motion to Vacate (Doc. 1) was filed on April 25, 2017.1 Movant argues 21 that his convictions under 18 U.S.C. § 924(c) and resulting 85 year sentences must be 22 vacated based on the reasoning and holding of Johnson v. United States, 135 S.Ct. 2551 23 (2015), as construed by Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015).2 A Response 24
25 1 Respondent has conceded that the Motion is timely. (Answer, Doc. 13 at 12.) Accordingly, the recent decision in U.S. v. Blackstone, 903 F.3d 1010 (9th Cir. 2018) does 26 not foreclose Movant’s right to relief. In Blackstone, the court concluded an untimely Johnson claim attacking a conviction under 18 U.S.C. § 924(c) was not subject to 28 27 U.S.C. § 2255(f)(1) which permits a delayed commencement of the limitations period for new rules of law. 1 (Doc. 13) to the Motion to Vacate was filed on July 12, 2017. Movant has requested 2 several extensions to reply (Docs. 14, 16) which were granted (Docs. 15, 17). Movant 3 has not yet replied in support of his Motion to Vacate. 4 The parties previously obtained stays to await in Dimaya and Begay. On April 17, 5 2018, the Supreme Court issued its opinion in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), affirming the Ninth Circuit’s decision extending Johnson to 18 U.S.C. § 16(b), thereby 6 invalidating its residual clause, and effectively that of § 924(c). On August 19, 2019, in 7 United States v. Begay, 2019 WL 3884261 (2019), the Ninth Circuit followed a panel 8 decision in United States v. Orona, 923 F.3d 1197 (9th Cir. 2019) that relied on Fernandez- 9 Ruiz v. Gonzales, 466 F.3d 1121, 1126, 1132 (9th Cir. 2006) (en banc) to conclude that 10 reckless conduct did not qualify as a crime of violence under the elements test. The 11 Government argued (as it does here) unsuccessfully that Fernadez-Ruiz had been 12 effectively overruled by the decision in Voisine v. United States, 136 S. Ct. 2272 (2016). 13 Both Begay and Orona relied on a three-judge panel’s obligation to follow existing 14 Ninth Circuit precedent unless “clearly irreconcilable” with Voisine. See Begay, 2019 WL 15 3884261, at *5 and Orona, 923 F.3d at 1203. On August 22, 2019, the United States filed 16 a petition for rehearing en banc in Orona. (CR 17-17508, Doc. 53.) If the petition for 17 rehearing en banc is granted, the Ninth Circuit will have the opportunity to address 18 whether the Supreme Court’s decision in Voisine is irreconcilable with Fernandez-Ruiz 19 and its determination that “crimes of violence” cannot be committed recklessly. That 20 determination could be dispositive of Movant’s challenged to Count 3, Use of a Firearm 21 During a Crime of Violence (Assault Resulting in Serious Bodily Injury). 22 Necessity of Order – The Court’s Order stayed this case by granting Movant’s 23 various motions. Although not an explicit limitation on the stay, the rationale for the stay 24 was the pendency of Dimaya and Begay. Neither of those cases is now pending. 25 Accordingly, in the ordinary course, the stay would now be vacated, briefing completed, 26 and a ruling issued. Continuing the stay should be effected by a new order. 27 1 Magistrate Judge Authority - The grant of a motion to stay may be deemed 2 dispositive of a habeas petitioner’s claims because it arguably effectively precludes some 3 of the relief sought (e.g. the potential of immediate - or at least sooner – release from 4 custody). See S.E.C. v. CMKM Diamonds, Inc., 729 F.3d 1248, 1260 (9th Cir. 2013) 5 (denial of stay that did not effectively deny any ultimate relief sought was non-dispositive) 6 and PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st Cir. 2010) (ruling on a motion 7 to stay civil litigation pending arbitration is not dispositive of either the case or any claim 8 or defense within it). But see Mitchell v. Valenzuela, 791 F.3d 1166, 1167 (9th Cir. 2015) 9 (denial of stay to exhaust state remedies effectively dispositive of claims); and Bastidas v. 10 Chappell, 791 F.3d 1155, 1157 (9th Cir. 2015) (same). Dispositive matters may not be 11 heard directly by a magistrate judge in a case heard on referral, but must be addressed by 12 way of a report and recommendation. See 28 U.S.C. § 636(b). 13 Here, the fact that Movant has requested the stay diminishes concerns that the 14 motion could be considered dispositive. Nonetheless, in an abundance of caution, the 15 undersigned addresses the matter by way of this Report and Recommendation. 16 Applicable Law - Generally, this court has authority to stay consideration of a case. 17 A court's power to stay proceedings pending the resolution of another case is “incidental 18 to the power inherent in every court to control the disposition of the causes on its docket 19 with economy of time and effort for itself, for counsel, and for litigants.” Landis v. North 20 American Co., 299 U.S. 248, 254 (1936). See also Rhines v. Weber, 544 U.S. 269, 276 21 (2005) (“District courts do ordinarily have authority to issue stays, where such a stay 22 would be a proper exercise of discretion.”) (citing Landis). “A district court has inherent 23 power to control the disposition of the causes on its docket in a manner which will promote 24 economy of time and effort for itself, for counsel, and for litigants.” CMAX, Inc. v. Hall, 25 300 F.2d 265, 268 (9th Cir. 1962) 26 Ordinarily, the propriety of a requested stay is determined by the weighing of “the 27 competing interests which will be affected by the granting or refusal to grant a stay.” 1 interests are the possible damage which may result from the granting of a stay, the hardship 2 or inequity which a party may suffer in being required to go forward, and the orderly 3 course of justice measured in terms of the simplifying or complicating of issues, proof, 4 and questions of law which could be expected to result from a stay.” CMAX, 300 F.2d at 5 268. 6 And, ordinarily, judicial economy is a legitimate consideration in determining the 7 need for a stay. For example, a “trial court may, with propriety, find it is efficient for its 8 own docket, and the fairest course for the parties to enter a stay of an action before it, 9 pending resolution of independent proceedings which bear upon the case.” Leyva v. 10 Certified Grocers of California, 593 F.2d 857, 863 (9th Cir. 1979). 11 However, in the context of habeas cases, “special considerations” are implicated 12 “that place unique limits on a district court's authority to stay a case in the interests of 13 judicial economy.” See Yong v. INS, 208 F.3d 1116, 1120 (9th Cir. 2000). This is because 14 a habeas proceeding is intended to be a swift remedy to illegal confinement, and the 15 statutes mandate that the courts give habeas petitions special preference on their calendars. 16 Id.
17 Consequently, although a short stay may be appropriate in a habeas case to await a determination in a parallel case in the same 18 court, or to allow a state to prepare for a retrial of a successful petitioner, we have never authorized, in the interests of judicial 19 economy, an indefinite, potentially lengthy stay in a habeas case. Nor do we now. “The writ of habeas corpus, challenging 20 illegality of detention, is reduced to a sham if ... trial courts do not act within a reasonable time.” A long stay also threatens to create the 21 perception that courts are more concerned with efficient trial management than with the vindication of constitutional rights. 22 Yong v. I.N.S., 208 F.3d 1116, 1120 (9th Cir. 2000) (citations omitted) (quoting Jones v. 23 Shell, 572 F.2d 1278, 1280 (8th Cir.1978)). 24 In Yong, the Ninth Circuit held that a district court had abused its discretion in 25 staying habeas proceedings pending a decision in a pending appeal called Ma that raised 26 similar issues. The Ninth Circuit held that the stay, which would last for an indefinite 27 1 petition contending that the INS was unconstitutionally detaining him. See Yong, 208 F.3d 2 at 1120–21. The Yong panel reversed the stay-pending-decision even though the related 3 appeal in question, Ma, had been placed on an expedited schedule. 4 Application to this Motion - In this case, the asserted bases for a stay have been 5 the interests of uniform interpretation of the law and judicial economy. In requesting a 6 continuation of the stay, the parties argue that Orona will be informative. Under Yong, 7 the undersigned would ordinarily conclude that a stay would be inappropriate, given that 8 (despite expectations) there is no guarantee that a decision in the case will be issued in the 9 near future, or that it will ultimately be dispositive, or even necessarily informative (i.e. 10 because it may be resolved on a procedural or other unexpected basis). Here, however, 11 Movant has requested the stay and Respondent has joined in the request. And the greatest 12 risk of harm from a stay is to Movant, who is requesting the stay. Consequently, it appears 13 that the normal special concerns raised in Yong do not apply, and that no prejudice to 14 Movant is likely from the requested stay. 15 Moreover, the parties argue: “Petitioner received a sentence of 120 months on 16 Count 3 and consecutive sentences of 300 months each on the remaining § 924(c) counts. 17 His sentence totaled 1,083 months’ imprisonment. His current release date is January 3, 18 2089. As a result, Petitioner is not currently in any danger of overstaying his sentence, 19 even if this Court were to find in his favor and reverse his conviction for Count 3.” 20 (Motion, Doc. 34 at 6.) 21 Given the potential that the decision in Orona may assist the Court and the parties 22 in resolving the issues in this case, and result in economies to not only the Court, but to 23 the parties, and increase the likelihood of a uniform application of the law as determined 24 in those cases, the undersigned finds good cause to grant the stay. 25 However, given the potential that the stay could become protracted, the Court 26 should continue to require updates on the subject cases after the expected time for 27 decisions and/or upon such decisions, to permit the Court to re-evaluate whether a 1 IT IS THEREFORE RECOMMENDED: 2 || (A) The Parties’ Motion to Continue Stay, filed September 16, 2019 (Doc. 34) be 3 GRANTED. 4 || (B) The consideration of this matter continue to be STAYED until further order of the 5 Court. 6 || (C) The parties be required to file a status report regarding the continuance of the stay: 7 (1) within 30 days of the issuance of any decision on the Motion for Rehearing by the 8 Ninth Circuit in United States v. Orona, 923 F.3d 1197 (9th Cir. 2019); and (2) in 9 any event on or before March 16, 2020, and every three months thereafter. 10 11 EFFECT OF RECOMMENDATION 12 This recommendation is not an order that is immediately appealable to the Ninth 13 || Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of || Appellate Procedure, should not be filed until entry of the district court's judgment. 15 However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall 16 || have fourteen (14) days from the date of service of a copy of this recommendation within 17 || which to file specific written objections with the Court. Thereafter, the parties have 18 || fourteen (14) days within which to file a response to the objections. Failure to timely file 19 || objections to any findings or recommendations of the Magistrate Judge will be considered 20 || a waiver of a party's right to de novo consideration of the issues, see United States v. 21 || Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver 22 || of a party's right to appellate review of the findings of fact in an order or judgment entered 23 || pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 24 || 1146-47 (9th Cir. 2007). 25 Dated: September 17, 2019 _ AL lt 26 |} 17122900 Order 1909 16 on Jone Movin Sta. doex United States Magistrate Judge 27 28