Corbett v. United States

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION 3:16-cv-330-RJC (3:07-cr-144-RJC-1) ANDRE L. CORBETT, ) ) Petitioner, ) ) vs. ) ORDER ) UNITED STATES OF AMERICA, ) ) Respondent. ) ___________________________________ ) THIS MATTER is before the Court on Petitioner’s Motion to Place his § 2255 Motion in Abeyance, (Doc. No. 13).

Petitioner filed a Motion to Vacate pursuant to 28 U.S.C. § 2255 through counsel on June 13, 2016, raising a claim pursuant to Johnson v. United States, 135 S.Ct. 2551. (Doc. No. 1). The case has been stayed for several years pending the Fourth Circuit Court of Appeals’ consideration of United States v. Ali, No. 15-4433, United States v. Simms, No. 15-4640, and United States v. Steward, No. 15-4422. (Doc. Nos. 6, 11).

Petitioner presently seeks to further stay these proceedings pursuant to United States v. Moore, No. 19-7879, in which Moore is seeking a certificate of appealability on the claims: “(1) that § 924(c)’s residual clause is unconstitutionally vague, and Hobbs Act conspiracy does not satisfy that provision’s force clause; (2) that the Court must apply the categorical approach to determine whether an offense qualifies as a crime of violence under § 924(c)’s force clause; (3) that based on the Pinkerton1 instruction given at trial and the jury’s general verdict, applying the Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). modified categorical [approach] requires the Court to assume that the challenged § 924(c) counts were predicated on Hobbs Act conspiracy; and (4) that under Stromberg v. California, 283 U.S. 359 (1931), his § 924(c) conviction is unconstitutional.” (Doc. No. 13 at 2). The Government opposes this Motion.

The Court finds that a stay of the instant proceedings is unwarranted and Petitioner’s Motion will be denied.

IT IS, THEREFORE, ORDERED that Petitioner’s Motion to Place his § 2255 Motion in Abeyance, (Doc. No. 13), is DENIED.

Signed: March 6, 2020 Robert J. Conrad, Jr. ed, United States District Judge “ee