Filed: Sep. 03, 2013
Latest Update: Sep. 03, 2013
Summary: ORDER ROBERT J. CONRAD, Jr., District Judge. THIS MATTER comes before the Court on Petitioner's Motion to Hold in Abeyance, (Doc. No. 26), to which the Government consents. In Petitioner's Motion to Vacate, (Doc. No. 1), and Response to Motion to Dismiss, (Doc. No. 24), he claims he is innocent of the enhancement under 21 U.S.C. 851 based on developments in case law. The United States Court of Appeals for the Fourth Circuit previously rejected such a claim in an unpublished decision. Unit
Summary: ORDER ROBERT J. CONRAD, Jr., District Judge. THIS MATTER comes before the Court on Petitioner's Motion to Hold in Abeyance, (Doc. No. 26), to which the Government consents. In Petitioner's Motion to Vacate, (Doc. No. 1), and Response to Motion to Dismiss, (Doc. No. 24), he claims he is innocent of the enhancement under 21 U.S.C. 851 based on developments in case law. The United States Court of Appeals for the Fourth Circuit previously rejected such a claim in an unpublished decision. Unite..
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ORDER
ROBERT J. CONRAD, Jr., District Judge.
THIS MATTER comes before the Court on Petitioner's Motion to Hold in Abeyance, (Doc. No. 26), to which the Government consents.
In Petitioner's Motion to Vacate, (Doc. No. 1), and Response to Motion to Dismiss, (Doc. No. 24), he claims he is innocent of the enhancement under 21 U.S.C. § 851 based on developments in case law. The United States Court of Appeals for the Fourth Circuit previously rejected such a claim in an unpublished decision. United States v. Wheeler, No. 11-6643, 2012 WL 5417557, at *1 (4th Cir. Nov. 7, 2012). However, the court recently found Simmons retroactive to invalidate a conviction under 18 U.S.C. § 922(g)(1), Miller v. United States, ___ F.3d ___ (4th Cir. 2013), and scheduled oral argument on October 31, 2013, in a case similar to Petitioner's, United States v. Brantley, No. 12-4752 (Aug. 15, 2013) (district court vacated Career Offender sentence on collateral review based on Carachuri and Simmons).
IT IS, THEREFORE, ORDERED that Petitioner's motion, (Doc. No. 26), is GRANTED and the Court will stay this matter pending the resolution of Brantley or other appellate direction.
