Opinion
Civ. No. 16-00682-JCH-GJF Crim. No. 14-00591-JCH
06-30-2016
REYNALDO GRIEGO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER REQUIRING SUPPLEMENTAL BRIEF AND ANSWER
This Matter is before the Court, sua sponte under rule 4(b) of the Rules Governing Section 2255 Cases, on Petitioner Reynaldo Griego's Motion To Correct Sentence Under 28 U.S.C. § 2255, which seeks to vacate the enhancement of Petitioner's sentence under the United States Sentencing Guidelines, in light of the Johnson v. United States, 135 S. Ct. 2551 (2015). [CV Doc. 1; CR Doc. 108] After Petitioner's § 2255 motion was filed, the United States Supreme granted certiorari to consider whether, inter alia, (1) Johnson applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in U.S.S.G. § 4B1.2(a)(2); and (2) an offense listed as a "crime of violence" only in the commentary to U.S.S.G. § 4B.2, remains a "crime of violence" after Johnson. See Beckles v. United States, No. 15-8544 (cert. granted June 27, 2016). Additionally, after Petitioner's § 2255 motion was filed, the Tenth Circuit Court of Appeals issued its opinion in United States v. Mitchell, No. 15-7076 (10th Cir. June 29, 2016) (slip op), indicating that "the additional element of deadly or dangerous weapon makes an apprehension-causing assault a crime of violence, even if the simple assault would not be." Id. at 12.
In light of the foregoing, the Court will require Petitioner to file a supplemental brief addressing the following two issues and attaching any relevant state court documents pertinent to an analysis of Petitioner's prior conviction of aggravated assault against a household member (Deadly Weapon) under the modified categorical approach:
1. Whether this case should be stayed pending the United States Supreme Court's ruling in Beckles v. United States, No. 15-8544?
2. What effect, if any, United States v. Mitchell, No. 15-7076 (10th Cir. June 29, 2016) (slip op), has upon this case?
After Petitioner's supplemental brief has been filed, the Government will have thirty days in which to file a response to the § 2255 motion and supplemental brief.
IT IS HEREBY ORDERED that the Clerk is directed to forward to the United States of America a copy of Petitioner's Motion To Correct Sentence Under 28 U.S.C. § 2255 and a copy of this Order;
IT IS FURTHER ORDERED that, within thirty (30) days of the entry of this Order, Petitioner shall file a supplemental brief addressing the issues set forth above;
IT IS FURTHER ORDERED that, within thirty (30) days of the filing of Petitioner's brief, the United States shall file an answer to Petitioner's § 2255 motion and supplemental brief.
IT IS SO ORDERED.
/s/_________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE