McPeters v. United States

• Decision Date: 19 October 2016
• Docket Number: LA CV 16–06079–VBF, LA CV 16–06135–VBF,LA CR 06–00409–VBF–1,Case No. LA CR 06–00167–VBF–1
• Citation: 220 F.Supp.3d 1024
• Court: U.S. District Court — Central District of California
• Parties: Anthony NMI MCPETERS, Defendant–Petitioner v. UNITED STATES of America, Plaintiff–Respondent

220 F.Supp.3d 1024

Anthony NMI MCPETERS, Defendant–Petitioner

v.UNITED STATES of America, Plaintiff–Respondent

Case No. LA CR 06–00167–VBF–1

LA CR 06–00409–VBF–1

LA CV 16–06079–VBF, LA CV 16–06135–VBF

United States District Court, C.D. California.

Signed October 19, 2016

Brianna Fuller Mircheff, Federal Public Defenders Office, Los Angeles, CA, for Petitioner.

Veronica Dragalin, Assistant 2241–2255 Us Attorney La–Cr, Bruce K. Riordan, Office of US Attorney, Los Angeles, CA, for Respondent.

PROCEEDINGS (IN CHAMBERS): ORDER Denying Document # 8 (Government's Request to Stay This Habeas Action Pending Supreme Court Decision in Beckles ); Directing Government to Respond to Section 2255 Motion by Friday, November 11, 2016; Permitting McPeters to Reply by Monday, December 5, 2016

PRESENT: HONORABLE VALERIE BAKER FAIRBANK, UNITED STATES DISTRICT JUDGE

On February 17, 2006, a criminal complaint and a Report Commencing Criminal Action issued against Anthony NMI [sic] McPeters ("petitioner"). See Case Management /electronic Case Filing System Documents ("Docs") 1–2. On February 17, 2006, Magistrate Judge Jacqueline Chooljian arraigned petitioner and ordered him permanently detained pending trial, see Docs 5–6. A federal grand jury issued an indictment on March 3, 2006 charging petitioner with one count of bank robbery in violation of 18 U.S.C. section 2113(a). See Doc 8; see also Docs 9–11 (case summary and memoranda filed by prosecution March 3, 2006). The Magistrate Judge conducted post-indictment arraignment on March 13, 2006 (Docs 12–13). On September 11, 2006, Judge Robert Takasugi conducted a plea colloquy and accepted petitioner McPeters's guilty plea to the lone count of the indictment (Minutes of Plea Hearing at Doc 22).

After considering the parties' sentencing memoranda (Docs 23, 28, and 34), Judge Takasugi conducted a sentencing hearing on February 12, 2007 (Minutes of Sentencing Hearing at Doc 36). On February 14, 2007, Judge Takasugi issued a Judgment and Commitment Order (Doc 37) and then an Amended Judgment (Doc 38) imposing a term of 188 months (15 years and 8 months) in federal prison followed by three years of supervised release.

Petitioner McPeters's Direct Appeal. On February 22, 2007, petitioner timely filed a notice of appeal (Doc 39), which the Ninth Circuit acknowledged by Notice issued April 19, 2007 (Doc 44). The Ninth Circuit affirmed the criminal judgment against petitioner, issuing its Mandate (Doc 55) on October 22, 2009. So far as the record reflects, petitioner did not petition the U.S. Supreme Court for certiorari.

While petitioner's direct appeal from the Judgment of Conviction was pending, his case was reassigned from District Judge Takasugi to the undersigned judge.

Petitioner McPeters's Prior Collateral Attacks. On October 18, 2010, petitioner filed a Motion to Set Aside, Correct, or Vacate Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 ("the first 2255 motion"), which was docketed as Civil Case number LA CV 10–07808–VBF (Doc 56). On July 20, 2011, this Court issued an Order (Doc 61) denying the first 2255 motion; this Court subsequently issued an Order (Doc 66) denying a certificate of appealability. On September 13, petitioner filed a notice of appeal (Doc 62), which the Ninth Circuit acknowledged as Appeal No. 11–56724 by Notice issued November 18, 2011 (Doc 65). By Order issued October 22, 2012 (Doc 68), the Circuit likewise denied a certificate of appealability.

On February 28, 2011, petitioner filed another Motion to Set Aside, Correct, or Vacate Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. Section 2255 ("the second 2255 motion") and a Supplement, which were docketed in a new Civil Case number LA CV 10–08071–VBF (Docs 59–60). This Court denied the second 2255 motion as well.

More recently, on April 20, 2016, deputy public defender Brianna Fuller Mircheff entered an appearance on behalf of petitioner in both criminal cases (CR–167 Doc 69 and CR–409 Doc 52). The DPD filed a document stating:

Petitioner ... has filed an application in the Ninth Circuit for leave to file a second or successive motion to vacate his sentence, as well his proposed 2255 petition, Case No. 16–71140. Petitioner hereby files the attached petition in this Court as well, protectively, in order to ensure compliance with the one-year statute of limitations. Petitioner asks that this Court hold this petition in abeyance until such time as the Ninth Circuit grants his application. Petitioner will notify the Court if and when his application is granted.

CR–167 Doc 70 and CR–409 Doc 53 at 1–2. By Order issued July 13, 2016 (CR–167 Doc 71), the Court stayed this action and held it in abeyance pending the Circuit's ruling on petitioner's pending application for leave to file a second-or-successive section 2255 motion.

By Order issued August 9, 2016 (CR–167 Doc 72 and CR–409 Doc 55), the Circuit granted McPeters leave to file this second-or-successive section 2255 motion as to the convictions in both criminal cases. Accordingly, on August 15, 2016, the Clerk's Office created the civil actions LA CV 16–06079–VBF and LA CV 16–06135–VBF for the habeas proceedings, and filed McPeters's section 2255 motion in both criminal cases and both civil cases. See Doc 1 in the civil cases; see also CR–167 Doc 74 and CR–409 Doc 57.

Last Tuesday, October 11, 2016, the government filed a motion to stay these habeas proceedings indefinitely pending the Supreme Court's decision in Beckles v. United States.See CR–167 Doc 78 and CR–409 Doc 62; see also CV–6079 Doc 8 and CV–6135 Doc 8. That same day, this Court issued an Order (CV–6135 Doc 9) permitting petitioner McPeters to file a response to the stay motion by Wednesday, October 19, 2016.

Petitioner timely filed a brief opposing the stay on October 13, 2016. See CR–167 Doc 79 and CR–409 Doc 63; see also CV–6135 Doc 10.

The government filed a reply in support of its stay motion two days ago, on Monday, October 17, 2016. See CR–167 Doc 81 and CR–409 Doc 65; see also CV–6135 Doc 12.

LEGAL STANDARD FOR STAYS OF A HABEAS CORPUS ACTION

When deciding whether to exercise its discretion to stay a civil or criminal proceeding, a federal court in the Ninth Circuit must balance several potentially competing interests:

Among these competing interests are the possible damage which may result [to the party opposing a stay] from the granting of a stay, the hardship or inequity which a party [seeking a stay] may suffer in being required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.

CMAX, Inc. v. Hall , 300 F.3d 265, 268 (9^th Cir. 1962) ; see also Federal Savings & Loan Ins. Corp. v. Molinaro , 889 F.2d 899, 903 (9^th Cir. 1989). "The longer the stay, the stronger the justification must be for staying a case." Savage v. US , No. LA CV 16–03684 Doc. 16 at 3, ––– F.Supp.3d ––––, 2016 WL 7176693 (C.D. Cal. Oct. 11, 2016) (Valerie Baker Fairbank, Sr. J.) (citing Yong v. I.N.S. , 208 F.3d 1116, 1119 (9^th Cir. 2000) ).

Moreover, "habeas proceedings implicate special considerations that place unique limits on a district court's authority to stay a case in the interests of judicial economy." Yong , 208 F.3d at 1121. In habeas proceedings, "special solicitude is required because the writ is intended to be a ‘swift and imperative remedy in all cases of illegal restraint or confinement.’ " Yong , 208 F.3d at 1121 (quoting Fay v. Noia , 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) ). Indeed, in Yong the Ninth Circuit held that a district court had abused its discretion in staying habeas proceedings pending a decision in a pending appeal called Ma that raised similar issues. The Ninth Circuit held that the stay, which would last for an indefinite period of time, placed a "significant burden" on the petitioner by delaying progress on his petition contending that the INS was unconstitutionally detaining him. See Yong , 208 F.3d at 1120–21. The Circuit stated that "although a short stay may be appropriate in a habeas case ... we have never authorized, in the interests of judicial economy, an indefinite, potentially lengthy stay in a habeas case."Yong , 208 F.3d at 1120. The Yong panel reversed the stay-pending-decision even though the related appeal in question, Ma , had been placed on an expedited schedule.

ANALYSIS: GOVERNMENT HAS NOT SHOWN THAT A STAY WOULD BE PROPER

In its opening brief seeking an indefinite stay, the government argues as follows:

* * * McPeters ... contend[s] that his sentence as a career offender within the meaning of USSG § 4B1.2 is unconstitutional in light of Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (holding that the so-called "residual clause" in the definition of a "violent felony" in the Armed Career Criminal Act of 1984, 18 U.S.C. section 924(e)(2)(B) ( "ACCA"), is unconstitutionally vague).

For defendant to prevail on his motion, he must establish, among other things, that Johnson 's constitutional holding applies to the residual clause definition of a "crime of violence" in USSG § 4B1.2's Career Offender Guideline and that it does so retroactively on collateral review.

Those questions are now before the Supreme Court in Beckles v. United State , ––– U.S. ––––, 136 S.Ct. 2510, 195 L.Ed.2d 838, (2016) (order granting certiorari), which will be briefed over the summer and argued in the upcoming October 2016 Supreme Court term.

[footnote 1] The government will concede in the Supreme Court that Johnson 's constitutional holding applies to the residual clause definition of a "crime of violence" in USSG § 4B1.2's Career Offender Guideline in cases on direct review [direct appeal]. * * * But the government will dispute that it does so retroactively for purposes of Guidelines challenges on collateral review [habeas corpus review]. * * * Moreover, the government is optimistic that its view of that

...