Opinion
No.: 3:04-CR-71-RLJ-CCS-1 No.: 3:16-CV-639-RLJ
02-27-2017
JOHNNY M. WILSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
On November 2, 2016, this Court received the instant successive motion to vacate, set aside, or correct Petitioner's sentence pursuant to 28 U.S.C. § 2255 [Doc. 32]. The petition challenges his armed career criminal designation in light of Johnson v. United States, 135 S. Ct. 2551 (2015), a decision in which the Supreme Court invalidated the residual provision of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), for unconstitutional vagueness [Id. (suggesting that Petitioner's aggravated burglary convictions no longer qualify as a predicate violent felonies, preventing his continued designation as an ACCA offender)].
On February 11, 2016, Federal Defender Services of Eastern Tennessee ("FDSET") was appointed for the limited purpose of reviewing the case to determine whether or not Petitioner is eligible for collateral relief based upon Johnson v. United States, 135 S. Ct. 2551 (2015). See E.D. Tenn. SO-16-02 (Feb. 11, 2016). Consistent with that appointment, FDSET sought authorization to, and subsequently filed, the instant successive collateral challenge [Doc. 32]. FDSET supplemented to original petition on November 25, 2016 [Doc. 33]. --------
On November 30, 2016, the United States responded with the suggestion that Petitioner's entitlement to relief hinges on whether Tennessee aggravated burglary remains susceptible to categorization as a violent felony under the ACCA enumerated offense clause [Doc. 34]. Noting the Sixth Circuit has agreed to address that very issue en banc in United States v. Stitt, 646 F. App'x 454 (6th Cir. 2016), the United States requests that the Court defer resolution of Petitioner's § 2255 motion pending the Sixth Circuit decision [Id.]. Petitioner did not reply to the United States's response and the time for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2. This Court interprets the absence of any response as a waiver of objection.
"The question whether to stay a case pending a potentially dispositive decision in an appellate court is a pre-trial matter committed to the sound discretion of the [court]." United States v. Johnson, No. 3:11-CR-48, 2016 WL 4035187, at *1 (S.D. Ohio July 28, 2016). In light of the absence of a response in opposition and because the Stitt decision will likely clarify whether Tennessee aggravated burglary remains susceptible to categorization as a violent felony after the Supreme Court's decision in Mathis v. United States, 136 S. Ct. 2243 (2016), the Court finds that a stay is appropriate under the circumstances of the instant case.
For the reasons outlined above, the United States's request for a stay [Doc. 34] is GRANTED and the action [E.D. Tenn. Case No. 3:16-CV-639-RLJ] is STAYED pending issuance of the Sixth Circuit's en banc decision in Stitt. The parties are DIRECTED to file a joint status report within thirty (30) days of that decision.
IT IS SO ORDERED.
ENTER:
s/ Leon Jordan
United States District Judge