Opinion
Case No.: 2:06-cr-00252-RLH-RJJ-1
07-18-2016
UNITED STATES OF AMERICA, Respondent/Plaintiff, v. NATHAN WANE HERRINGTON, Petitioner/Defendant.
ORDER
(Protective Motion to Vacate - #45)
Before the Court is Petitioner/Defendant Nathan Wane Herrington's ("Herrington") Notice of Filing of Second or Successive Petition in the Ninth Circuit and Filing of Protective Motion to Vacate Under 28 U.S.C. § 2255 (#45) ("Motion") filed on June 24, 2016. The United States did not file a response.
In the Motion Herrington notifies the Court that he filed an application in the Court of Appeals for the Ninth Circuit ("Circuit Court") for leave to file a second or successive § 2255 motion in light of the Supreme Court's recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Additionally, Herrington requests that this Court issue an order holding his Motion in abeyance and deeming the Motion filed nunc pro tunc to the date of the original filing. See First First Am. General Order 2015-03 (D. Nev. April 27, 2015); see also Orona v. United States, No. 16-70568, 2016 WL 3435692, at *2 (9th Cir. June 22, 2016) (per curium) (holding that "the filing of a second or successive application in our court tolls the 1-year statute of limitations ... until our court rules on the application"). The Court will grant Herrington's Motion.
Accordingly, and for good cause appearing,
IT IS HEREBY ORDERED that Petitioner/Defendant Nathan Wane Herrington's Notice of Filing of Second or Successive Petition in the Ninth Circuit and Filing of Protective Motion to Vacate Under 28 U.S.C. § 2255 (#45) is GRANTED. Herrington's Motion to Vacate Under 28 U.S.C. § 2255 is stayed pending the Circuit Court's consideration of his application to file a second or successive § 2255 motion.
IT IS FURTHER ORDERED that the Motion preserves the filing date of June 24, 2016 for statute of limitations purposes under Johnson v. United States, 135 S.Ct. 2551 (2015).
Dated: July 18, 2016
/s/ _________
ROGER L. HUNT
UNITED STATES DISTRICT JUDGE