ORDER ON PETITIONER'S MOTION TO LIFT STAY

(Doc. No. 39)

ANTHONY W. ISHII, District Judge.

On June 24, 2016, relying on Johnson v. United States, 135 S.Ct. 2551 (2015), Petitioner filed this petition for relief from sentence under 28 U.S.C. § 2255. See Doc. No. 36. On July 6, 2016, the Court stayed this case pending resolution of three cases before the Ninth Circuit: Gardner v. United States (9th Cir. Case No. 15-72559), Jacob v. United States (9th Cir. Case No. 15-73302), and United States v. Begay (9th Cir. Case No. 14-10080). See Doc. No. 38. On October 31, 2016, Petitioner filed a motion to lift stay. See Doc. No. 39. For the reasons that follow, Petitioner's motion will be denied.

Petitioner's Arguments

Petitioner argues that he was sentenced to a 120 month term of imprisonment based on his classification as a "career offender" under the sentencing guidelines. The "career offender" designation was based on convictions for forcible escape being classified as "crimes of violence" under Sentencing Guideline 4B1.2(a). However, in light of Johnson, forcible escape no longer qualifies as a "crime of violence," and Petitioner can no longer be classified as a "career offender" under the guidelines.

Petitioner argues that, although the Supreme Court has heard arguments in the case of Beckles v. United States (Supreme Court Docket No. 15-8544), and Beckles addresses Johnson's application to Sentencing Guideline 4B1.2(a), the Ninth Circuit has rejected stays pending the decision in Beckles. In Gardner and Jacob, the Ninth Circuit had issued stays pending Beckles, but later lifted those stays. In its orders, the Ninth Circuit noted that Johnson announced a new substantive rule that has retroactive effect. Additionally, district courts within this circuit have refused to stay cases pending Beckles because the petitions challenge an unconstitutional confinement and it is unclear when or if the Supreme Court will issue a decision in Beckles.

Finally, Petitioner argues that the issuance of a long stay pending Beckles or Begay constitutes an unconstitutional suspension of habeas corpus that is not justified by judicial efficiency. In Yong v. INS, 208 F.3d 1116 (9th Cir. 2000), the Ninth Circuit found a five month stay was improperly "indefinite" because it would terminate upon the resolution of another case on appeal, and that case could remain open for years if it was reversed and remanded. Here, Beckles was only recently argued, and the Supreme Court could decide to dismiss the writ as improvidently granted, issue a splintered opinion with no clear majority, or be evenly divided.

Respondent's Opposition

Respondent argues that the stay should remain in place because the Supreme Court has now heard arguments in Beckles, and the issues to be resolved in that case are relevant here.

Respondent also argues that Petitioner's positions are unpersuasive. First, the Ninth Circuit's actions in Gardner and Jacob did not address the appropriateness of a stay in the district court. Second, Yong is distinguishable. The stay in Yong had the potential to last through a number of unknown appeals and to continue for years. Because of that potential indefinite duration, a heightened standard was required. Here, a decision in Beckles will likely be made in Spring 2017. Third, Petitioner has not explained how he would suffer any real prejudice from a stay, whereas the government has over 100 cases in the Fresno Division of the Eastern District of California that involve "crime of violence — career offenders" under Guideline 4B1.2(a). Finally, if the Supreme Court dismisses the writ as improvidently granted, then the stay could likely be lifted, and even a "fractured opinion" would be provide guidance in deciding the issues at hand.

Discussion

The Court stayed this case following suggestions from the Ninth Circuit in other cases that a stay may be appropriate until Gardner, Jacob, and Begay had been ruled upon. See Doc. No. 38.

Gardner and Jacob both involve "Johnson challenges" to Guideline 4B1.2(a). As the parties acknowledge, the Ninth Circuit has lifted stays in Gardner and Jacob, granted permission to file a subsequent § 2255 petition, and remanded the matters to the district courts of the Western District of Washington and the District of Oregon, respectively. Gardner v. United States, 2016 U.S. App. LEXIS 19295 (9th Cir. Aug. 1, 2016); Jacob v. United States, 2016 U.S. App. LEXIS 16775 (9th Cir. Aug. 1, 2016). Therefore, Gardner and Jacob are no longer pending before the Ninth Circuit, and no opinion in those cases from the Ninth Circuit can be reasonably anticipated. Therefore, Gardner and Jacob are no longer a sound basis for a stay in this matter.

In Begay, the key issue on appeal is whether the "crime of violence" provision of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague under Johnson. See Doc. No. 55 in United States v. Begay, Ninth Circuit Case No. 14-10080. That is not an issue in Petitioner's petition. Instead, Petitioner's petition rests entirely on a "Johnson challenge" to Guideline 4B1.2(a). See Doc. No. 36. Therefore, Begay is not a sufficient basis to keep this case stayed.

Although the Court does not find that Gardner, Jacob, and Begay justify a continued stay in this case, Respondent correctly points out that Beckles does. In Beckles, "the [Supreme] Court is expected to decide whether Johnson applies to sentences imposed under the residual clause of the Guidelines' career-offender provision and, if so, whether that rule applies retroactively to cases on collateral review." United States v. McCandless, 841 F.3d 819, 821 (9th Cir. 2016). Given the issues under consideration, the Supreme Court's decision in Beckles would directly affect the Petitioner's petition. Because of the potential dispositive effect, there is value in staying this matter until Beckles is decided. See Blow v. United States, 829 F.3d 170, 172-73 (2d Cir. 2016); United States v. Yancy, 2017 U.S. Dist. LEXIS 1549 (D. Nev. Jan. 4, 2017).

Petitioner makes several arguments against a stay pending Beckles. First, Petitioner correctly points out that the Ninth Circuit lifted the stays in Gardner and Jacob. Because Gardner and Jacob had been stayed pending resolution of Beckles, Petitioner contends that the Ninth Circuit's lifting of the stays reflects a disapproval of stays pending Beckles. However, the Ninth Circuit's unpublished orders in these cases are very brief. The orders lifted the stays, granted permission to file a subsequent § 2255 petition based on a prima facie showing under Johnson, and remanded the cases for further proceedings. See Gardner, 2016 U.S. App. LEXIS 19295 at *1-*2; Jacob, 2016 U.S. App. LEXIS 16775 at *1-*2. The orders neither prohibited nor spoke to a district court's ability or discretion to issue a stay of its own. See id. The Ninth Circuit's silence on the district court's ability to issue a stay is not the equivalent of a prohibition.

Petitioner also points out that a number of courts within the Ninth Circuit have denied stays pending Beckles. E.g. Nedrow v. United States, 2016 U.S. Dist. LEXIS 148453 (W.D. Wash. Oct. 26, 2016). However, numerous courts within the Ninth Circuit have granted stays pending a decision in Beckles. E.g. Yancy, 2017 U.S. Dist. LEXIS 1549 at *2-*4; United States v. Beaty, 2016 U.S. Dist. LEXIS 174760 (D. Alaska Dec. 19, 2016); Grant v. United States, 2016 U.S. Dist. LEXIS 150464 (D. Ariz. Oct. 31, 2016); United States v. Khatib, 2016 U.S. Dist. LEXIS 97755 (N.D. Cal. July 14, 2015). There is also a division among the circuit courts of appeal. Some circuit courts have held that a stay pending Beckles should not occur, while others hold that a stay should be issued. Cf., e.g., United States v. Smith, 2016 U.S. App. LEXIS 19934 (10th Cir. Nov. 4, 2016) (granting a writ of mandamus and ordering the district court to dissolve a stay) with Blow, 829 F.3d at 172-73 (permitting a successive § 2255 petition but instructing the district court to stay proceedings); In re Patrick, 833 F.3d 584, 589 (6th Cir. 2016) (same); In re Hoffner, 2016 U.S. App. LEXIS 18338, *2 (3d Cir. July 21, 2016). Given this divide within the federal judiciary as a whole, that some courts are denying stays is not in and of itself persuasive.

Petitioner also relies on Yong v. INS. In Yong, the district court issued a stay pending resolution of an appeal in another case. See Yong, 208 F.3d at 1119. The Ninth Circuit reversed and vacated the stay. See id. at 1121. Although the stay had "lasted only five months" by the time the Ninth Circuit issued its opinion, the Ninth Circuit found that the stay as crafted by the district court was indefinite in nature because there was the possibility of the Supreme Court reversing and remanding the other case. Id. at 1119-21. In other words, there was a chance that the other case would be stuck within the appellate system for an unknown number of years. See id. Given the indefinite duration of the stay, a greater showing than usual was needed to justify it. See id. As relevant here, the district court in Yong relied on judicial economy and an absence of prejudice to Yong to justify the stay. The Ninth Circuit did not accept either justification. See id. at 1119-20. First, the Ninth Circuit noted that, because of the special considerations associated with writs of habeas corpus, especially a district court's duty to resolve such motions expeditiously, it had never authorized an indefinite and potentially lengthy stay in a habeas case on the bases of judicial economy. See id. at 1119-21. Second, the Ninth Circuit found that Yong could have to wait a significant period of time before his claims and issues were finally adjudicated, and the stay at issue would not materially affect the INS. See id. at 1121.

As applied to this case, the Court does not find that Yong requires the Court to lift the stay. See United States v. Mumphrey, 2016 U.S. Dist. LEXIS 170814, *3 (D. Nev. Dec. 8, 2016) (rejecting the argument that Yong would prohibit a staying pending Beckles); United States v. Taylor, 2016 U.S. Dist. LEXIS 154148, *8-*9 (D. Ariz. Nov. 4, 2016) (same). Given the issues raised in this case and in Beckles, judicial efficiency strongly favors waiting for the Supreme Court to issue its decision. In re Embry, 831 F.3d 377, 382 (2d Cir. 2016). Unlike in Yong, the Court would not be creating an indefinite stay. On November 28, 2016, the Supreme Court heard oral arguments in Beckles. Courts anticipate that the Supreme Court will issue a decision in Beckles by the end of June 2017 at the latest. See United States v. Vaughn, 2016 U.S. Dist. LEXIS 176254, *5 (E.D. Mich. Dec. 21, 2016); United States v. Taylor, 2016 U.S. Dist. LEXIS 154148 (D. Ariz. Nov. 4, 2016); United States v. Johnson, 2016 U.S. Dist. LEXIS 98784, *6 n.1 (S.D. Ohio July 28, 2016). In other words, in five months or less, Beckles should be resolved, and the stay in this case will be lifted.1 If the Supreme Court does not decide Beckles by the end of June 2017, then the Court will either lift the stay or issue an order to show cause why the stay should not be lifted. Cf. Mumphrey, 2016 U.S. Dist. LEXIS 170814 at *4.

Finally, Petitioner has not shown how he will be prejudiced by a stay pending Beckles. Petitioner contends that the Ninth Circuit's orders in Gardner and Jacob show that a stay would be prejudicial and perhaps amount to the suspension of habeas corpus. However, as discussed above, Gardner and Jacob are short unpublished orders that do not discuss the ability of the district court to stay proceedings, and courts within and outside of the Ninth Circuit have been imposing stays pending Beckles. Further, the stay that is envisioned by the Court should expire by the end of June 2017, less than six months from today. Prejudice to Petitioner is not apparent.

The Court recognizes that some courts have denied stays where it appeared that the petitioner would have already served a period of time in excess of the likely new sentence. E.g. United States v. Anderson, 2016 U.S. Dist. LEXIS 109461, *4-*5 (N.D. Cal. Aug. 17, 2016); Collins v. United States, 2016 U.S. Dist. LEXIS 148038, *3-*4 (S.D. W. Va. Oct. 26, 2016); United States v. Casas, 2016 U.S. Dist. LEXIS 136271, *4 (E.D. Cal. Sept. 30, 2016). Here, although sentencing ranges are mentioned in Petitioner's brief, the parties do not address the issue in a meaningful way. If Petitioner believes that he can show at least "a fair possibility," see Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007), that he will have "out served" a new sentence if his current sentence is vacated under Johnson/Beckles, then Petitioner may file a motion to lift the stay that properly explores the issue.

ORDER

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's motion to lift stay is DENIED without prejudice; and

2. This case remains STAYED until the Supreme Court issues its decision in Beckles.2

IT IS SO ORDERED.