Lewis v. United States of America, No. 2:2016cv05565 - Document 267 (S.D.W. Va. 2016)
Court Description: MEMORANDUM OPINION AND ORDER AND NOTICE denying 263 MOTION for Appointment of New Counsel by Edward Lee Lewis; denying 264 MOTION to Stay Case Pending Appeal by Edward Lee Lewis; denying without prejudice 266 MOTION to Appoint Counsel Edward Lee Lewis; directing Clerk to Mail a copy of the civil docket sheet for this matter to defendant, along with a copy of this Order. Signed by Magistrate Judge Dwane L. Tinsley on 9/9/2016. (cc: attys; any unrepresented party) (tmr)
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Lewis v. United States of America Doc. 267 U N ITED STATES D ISTRICT COU RT SOU TH ERN D ISTRICT OF W EST VIRGIN IA CH ARLESTON ED W ARD LEE LEW IS, Mo van t, v. Cas e N o . 2 :16 -cv-0 556 5 Cas e N o . 2 :0 2 -cr-0 0 0 4 2 U N ITED STATES OF AMERICA, Re s p o n d e n t. MEMORAN D U M OPIN ION AN D ORD ER AN D N OTICE Pending before the Court is the United States’ Motion to Stay Pending Ruling by the Court of Appeals (ECF No. 264), in which the United States seeks a stay of these proceedings pending the issuance of an opinion by the United States Court of Appeals for the Fourth Circuit in the m atter of United States v. Desm ond Ra’Keesh W hite, No. 1540 96 (4 th Cir.). Also pending are Movant’s pro se Motion for Status of 2255 Motion (ECF No. 263) and his Letter-Form Motion for Appointm ent of New Counsel (ECF No. 266). PROCED U RAL H ISTORY On Novem ber 7, 20 0 2, Movant was sentenced in this United States District Court to 192 m onths in prison, followed by a three-year term of supervised release as a result of his conviction on five felony counts related to m ailing threatening com m unications and one felony count of being a felon in possession of a firearm . Movant’s sentence included an enhancem ent for being an arm ed career crim inal, pursuant to 18 U.S.C. § 924(e) (the “Arm ed Career Crim inal Act” or “ACCA”), based upon his three prior convictions of daytim e burglary under West Virginia Code § 61-3-11. Dockets.Justia.com Movant unsuccessfully challenged his ACCA enhancem ent on appeal. See United States v. Lew is, No. 0 2-4889, 75 F. App’x 164 (4 th Cir, Sept. 16, 20 0 3). He subsequently filed a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, which also included a challenge to his ACCA status, which was denied. See Lew is v. United States, No. 2:0 4-cv-10 0 9 (S.D. W. Va., Nov. 30 , 20 0 5) (ECF Nos. 146, 147). By unpublished opinion entered on August 25, 20 0 6, the Fourth Circuit denied a certificate of appealability and dism issed Movant’s appeal of the denial of his first section 2255 m otion. United States v. Lew is, No. 0 5-7936 (4 th Cir. Aug. 25, 20 0 6) (unpublished) (ECF No. 155). However, on J une 26, 20 15, the Suprem e Court decided Johnson v. United States, 135 S. Ct. 2551 (20 15), which held that the residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii) (defining “violent felony” to include an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another”) was unconstitutionally vague.1 Then, on April 18, 20 16, the Suprem e Court determ ined that Johnson changed the substantive reach of the Act, and therefore was a substantive, rather than a procedural decision, because it affected the reach of the underlying statute rather than the judicial procedures by which the statute was applied. Therefore, the Court held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. W elch v. United States, 136 S. Ct. 1257 (20 16). 1 As applicable herein, the ACCA defined a “violent felony” as “any crim e punishable by im prisonm ent for a term exceeding one year . . . that (i) has as an element the use, attem pted use of threatened use of physical force against the person of another [the “elem ents clause”]; (ii) is bu rglary, arson, or extortion, involves use of explosives [the “enum erated offenses clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the “residual clause”]. 18 U.S.C. § 924(e)(2)(B) [Em phasis added]. The residual clause has been stricken as being unconstitutionally vague. Thus, in order for Movant to properly be considered an arm ed career crim inal, his predicate offenses m ust satisfy either the elements clause or be one of the enum erated offenses listed therein. 2 On May 6, 20 16, attorney W. Michael Frazier was appointed to represent Movant to determ ine whether he m ay qualify for collateral relief concerning his conviction and sentence in light of Johnson. (ECF No. 246). On J une 21, 20 16, Movant received authorization from the Fourth Circuit to file a second or successive section 2255 m otion raising a Johnson-based claim (ECF No. 251), which is addressed in a Motion to Correct Sentence (ECF No. 252) and a Supplem ental Brief (ECF No. 258) filed by Mr. Frazier. On J uly 28, 20 16, the undersigned entered an Order setting a briefing schedule, under which United States’ response to Movant’s Motion to Correct Sentence is due on Septem ber 12, 20 16, and Movant’s reply due by Septem ber 27, 20 16. (ECF No. 256). However, on August 25, 20 16, the United States (the “governm ent”) filed the instant Motion to Stay Pending Appeal (ECF No. 264). On August 30 , 20 16, Movant, by counsel, filed an Objection to Governm ent’s Motion to Stay (ECF No. 266). On August 24 and Septem ber 2, 20 16, respectively, Movant, acting pro se, filed a Motion for Status of 2255 Motion (ECF No. 263) and a Letter-Form Motion for Appointm ent of New Counsel (ECF No. 266). The undersigned will address each m otion in turn. AN ALYSIS A. Th e go ve rn m e n t’s Mo tio n to Stay. As noted in the governm ent’s m otion, Movant’s sole argum ent in his section 2255 m otion is that the West Virginia burglary statute, under which his ACCA predicate offenses were obtained, defines “burglary” m ore broadly than the generic definition found in Tay lor v. United States, 495 U.S. 575 (1990 ), which is used to determ ine the enum erated offense of burglary under the ACCA. The governm ent’s m otion asserts that “[p]recisely the sam e argum ent about the sam e West Virginia burglary statute is now 3 pending before the Fourth Circuit” in the Desm ond White case. The governm ent notes that the W hite m atter has been fully briefed, with oral argum ent occurring in March of 20 16, and “a decision is anticipated any day.” (ECF No. 264 at 1, 3). Thus, the governm ent asserts that the Fourth Circuit is poised to address whether the West Virginia burglary statute defines burglary in accordance with the generic definition articulated in Tay lor and thus constitutes the enum erated offense of burglary under the ACCA. (Id.) The governm ent further asserts that a stay of the instant m atter pending the Fourth Circuit’s decision in W hite is in the interests of judicial econom y, with m inim al prejudice to Movant. (Id.) The governm ent notes that Movant is scheduled to be released from custody on or about October 22, 20 16, and that, under the current briefing schedule, this m atter will not even be ripe for determ ination until very near his release date. (Id. at 2). On August 30 , 20 16, Movant, by counsel, filed an Objection to Governm ent’s Motion to Stay (ECF No. 265). The Objection asserts that neither this court nor the parties can predict when the Fourth Circuit will rule in W hite or whether the Court will rule on any precise issue in W hite that would be determ inatively binding on this case. (Id. at 1). Movant’s Objection stresses that, although he is nearing the conclusion of his term of im prisonm ent, if he is entitled to relief in light of Johnson, he had already served m ore tim e in prison than he could have legally received without the ACCA enhancem ent, “so every possible day of freedom is precious to him .” (Id. at 2). Thus, Movant requests that the Motion to Stay be denied and that the current briefing schedule rem ain in place. (Id.) “[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with econom y of tim e and effort for itself, for counsel, and for litigants.” Landis v. North Am erican Co., 299 U.S. 248, 254 4 (1936). In exercising discretion to stay a case, a court “m ust weigh com peting interests.” Id. at 255; see also Central W . Va. Reg’l Airport Auth., Inc. v. Triad Eng’g, No. 2:15-cv11818, 20 15 WL 6758233 (S.D. W. Va. Nov. 5, 20 15) (Copenhaver, J .). “The party seeking a stay m ust justify it by clear and convincing circum stances outweighing potential harm to the party against whom it is operative.” W illiford v. Arm strong W orld Indus., Inc., 715 F.2d 124, 127 (4 th Cir. 1983); cf. Yong v. I.N.S., 20 8 F.3d 1116, 1120 -21 (9 th Cir. 20 0 0 ) (“habeas proceedings im plicate special considerations that place unique lim its on a district court’s authority to stay a case in the interests of judicial econom y”). The undersigned is persuaded that a stay of this m atter is not in the interests of justice. While the W hite case m ay squarely determ ine whether burglary as defined under the West Virginia statute falls within the generic definition required to be considered a predicate offense under the ACCA, there are potential procedural considerations in W hite which m ay lim it the Court’s consideration of the m erits of that issue. Furtherm ore, in light of the fact that Movant has already served tim e in excess of his m axim um sentence on his section 922(g) conviction without the ACCA enhancem ent, should it be determ ined that he is not an arm ed career crim inal, the undersigned believes that any additional delay in the adjudication of his m otion for collateral relief would result in undue prejudice to Movant and be a m iscarriage of justice.2 Moreover, the party seeking a stay is required to “m ake out a clear case of hardship or inequity in being required to go forward if there is even a fair possibility that the stay for which he prays will work dam age to som eone else.” Landis, 299 U.S. at 254-55. The 2 The undersigned notes that, even if Movant is released from custody before receiving a ruling on his m otion, if he is entitled to relief in light of Johnson, a re-sentencing would still be necessary, as his arm ed career crim inal status may have collateral consequences should his subsequent three-year term of supervised release be revoked. 5 undersigned is cognizant of the governm ent’s assertion that, if the Fourth Circuit subsequently rules differently than this court on this issue, the United States m ay be without a rem edy; however, in balancing the potential hardship or prejudice to the governm ent versus that to Movant, the undersigned FIN D S that the relevant factors weigh in favor of denying a stay herein. Accordingly, it is hereby ORD ERED that the United States’ Motion to Stay Case Pending Appeal (ECF No. 264) is D EN IED and the current briefing schedule rem ains in place. B. Mo van t’s Mo tio n fo r Statu s a n d Mo tio n fo r Ap p o in tm e n t o f N e w Co u n s e l. On August 24, 20 16, Movant filed a pro se Motion for Status of 2255 Motion (ECF No. 263). Then, on Septem ber 1, 20 16, Movant filed a pro se Letter-Form Motion for Appointm ent of New Counsel (ECF No. 266). In both of these docum ents, Movant asserts that he has had no com m unication with his court-appointed attorney, W. Michael Frazier, and does not know what is going on in this m atter. To the extent that Movant has requested notification of the status of this m atter, the Clerk is D IRECTED to m ail a copy of the civil docket sheet for this m atter to Movant, along with a copy of this Order. The undersigned FIN D S that Mr. Frazier has acted diligently in filing Movant’s present section 2255 m otion and other briefing, and that, presently, there is no basis for his rem oval as Movant’s counsel. However, Mr. Frazier is cautioned that he m ust keep his client apprised of the status of these proceedings and, if he has not done so already, he is directed to provide Movant with copies of all of the filings m ade herein. At the sam e tim e, the Movant is N OTIFIED that, should he be released from custody prior to the resolution of this m atter, he m ust advise the Court, Mr. Frazier, and counsel for the United States of Am erica of his subsequent contact inform ation so that 6 the Court and counsel m ay properly com m unicate with Movant concerning these proceedings. Movant is also advised that, because he is represented by counsel in this m atter, all filings should be m ade through counsel and not pro se. For the reasons stated herein, Movant’s Motion for Status (ECF No. 263) and Letter-Form Motion for Appointm ent of New Counsel (ECF No. 266) are D EN IED W ITH OU T PREJU D ICE. The Clerk is requested to m ail a copy of this Order and the civil docket sheet to Movant, and to transm it a copy of this Order to counsel of record. ENTER: Septem ber 9, 20 16 7
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