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McCabe v. U.S., CV-16-08131-PCT-JAT (ESW). (2018)

Court: District Court, D. Arizona Number: infdco20180501678 Visitors: 4
Filed: Apr. 27, 2018
Latest Update: Apr. 27, 2018
Summary: ORDER EILEEN S. WILLETT , Magistrate Judge . On January 30, 2018, the undersigned issued a Report and Recommendation to the District Judge recommending that the Court dismiss Movant's challenge to his conviction on Count 3. (Doc. 26 at 4-8). The undersigned recommended that the Court stay resolution of Movant's challenge to his conviction on Count 4 pending the Ninth Circuit's decision in United States v. Begay, No. 3:13-cr-08073-NVW-1 (D. Ariz. Jan. 29, 2014), appeal docketed, No. 14-1
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ORDER

On January 30, 2018, the undersigned issued a Report and Recommendation to the District Judge recommending that the Court dismiss Movant's challenge to his conviction on Count 3. (Doc. 26 at 4-8). The undersigned recommended that the Court stay resolution of Movant's challenge to his conviction on Count 4 pending the Ninth Circuit's decision in United States v. Begay, No. 3:13-cr-08073-NVW-1 (D. Ariz. Jan. 29, 2014), appeal docketed, No. 14-10080 (9th Cir. Feb. 20, 2014) and the Supreme Court's decision in Sessions v. Dimaya, 803 F.3d 1110 (9th Cir. 2015), cert. granted, 2016 WL 3232911 (U.S. Sept. 29, 2016) (No. 15-1498). (Doc. 26 at 8-11).

On April 17, 2018, the Supreme Court issued its opinion in Dimaya, 138 S.Ct. 1204 (2018). On April 23, 2018, the District Judge re-referred this matter to the undersigned, explaining that given that Dimaya has now been decided, it would be more efficient to address all of Movant's claims at the same time. (Doc. 31 at 2). In re-referring the matter, the District Judge left it to the undersigned's determination whether, given Dimaya, this matter should be stayed pending the decision in Begay. (Id.). For the reasons explained in the Report and Recommendation (Doc. 26 at 8-10), the undersigned finds that the Ninth Circuit's forthcoming decision in Begay may provide guidance in resolving Movant's challenge to his conviction on Count 4. The record reflects that neither party objects to a stay at this juncture.1

Therefore,

IT IS ORDERED staying this matter pending the Ninth Circuit's decision in United States v. Begay, No. 3:13-cr-08073-NVW-1 (D. Ariz. Jan. 29, 2014), appeal docketed, No. 14-10080 (9th Cir. Feb. 20, 2014). Within fourteen days after the decision in Begay is issued, the Government shall file a Supplemental Response. Movant may file a Supplemental Reply within seven days after service of the Supplemental Response.

FootNotes


1. The Government initially requested that the Court stay the case, which the Court denied. (Docs. 4, 12). Although Movant opposed the Government's September 2016 Motion to Stay (Doc. 4), Movant asserted in his Objections to the Report and Recommendation that this matter should be stayed pending Dimaya and Begay. (Doc. 29 at 3).
Source:  Leagle

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