Filed: Apr. 23, 2018
Latest Update: Apr. 23, 2018
Summary: ORDER JAMES A. TEILBORG , Senior District Judge . Pending before the Court is Movant's motion to vacate, set aside or correct sentence ("Motion"). Movant was convicted of four Counts in 2013. (Doc. 1 at 1). Movant challenges two of his four convictions in his motion. (Doc. 1 at 3; Doc. 26 at 2). Specifically, Movant challenges his convictions on Counts 3 and 4. (Doc. 26 at 2). On January 30, 2018, the Magistrate Judge to whom this case was assigned issued a Report and Recommendation (R&R)
Summary: ORDER JAMES A. TEILBORG , Senior District Judge . Pending before the Court is Movant's motion to vacate, set aside or correct sentence ("Motion"). Movant was convicted of four Counts in 2013. (Doc. 1 at 1). Movant challenges two of his four convictions in his motion. (Doc. 1 at 3; Doc. 26 at 2). Specifically, Movant challenges his convictions on Counts 3 and 4. (Doc. 26 at 2). On January 30, 2018, the Magistrate Judge to whom this case was assigned issued a Report and Recommendation (R&R) r..
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ORDER
JAMES A. TEILBORG, Senior District Judge.
Pending before the Court is Movant's motion to vacate, set aside or correct sentence ("Motion"). Movant was convicted of four Counts in 2013. (Doc. 1 at 1). Movant challenges two of his four convictions in his motion. (Doc. 1 at 3; Doc. 26 at 2). Specifically, Movant challenges his convictions on Counts 3 and 4. (Doc. 26 at 2).
On January 30, 2018, the Magistrate Judge to whom this case was assigned issued a Report and Recommendation (R&R) recommending that the Motion be denied with respect to Count 3 and stayed with respect to Count 4. Movant objected to the R&R. The Government agrees with the ultimate conclusion of the R&R as to Count 3, but preserved additional arguments; for example the Government argues that the entire Motion is untimely. (Doc. 30 at 2 n.1).
With respect to Count 4, the R&R recommended this case be stayed until the United States Supreme Court issues a decision in Dimaya (which occurred on April 17, 2018) and the Ninth Circuit Court of Appeals issues a decision in Begay. Movant objects to Counts 3 and 4 being addressed separately, arguing "The outcome of count 3 should be addressed similarly to that of count 4. The matter should be stayed pending the decision of the United States Supreme Court in Dimaya and the Ninth Circuit decision in Begay." (Doc. 29 at 3).
At this point, given that Dimaya has now been decided, the Court believes it would be more efficient to address the entire motion at the same time. Further, this approach is Movant's preference for having his case decided. Thus, the Court will reject the R&R. However, by this Order, the Court is not making any substantive ruling on any aspect of this case (or the objections).
The Court will not stay this case pending the outcome of Begay and will instead leave to the Magistrate Judge's determination whether, given the holding of Dimaya, this case should still be stayed pending the outcome of Begay. Based on the foregoing,
IT IS ORDERED that the Report and Recommendation (Doc. 26) is rejected.
IT IS FURTHER ORDERED that this matter is re-referred to Magistrate Judge Eileen S. Willett pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a further report and recommendation.
