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Oman v. Cross

United States District Court, S.D. Illinois

July 7, 2015

JASON DOUGLAS OMAN, No. 27604-013, Petitioner,
v.
JAMES CROSS, Respondent.

MEMORANDUM AND ORDER

DAVID R. HERNDON UNITED STATES DISTRICT JUDGE

In an order dated March 23, 2015, this Court stayed proceedings in this case pending a decision by the United States Supreme Court in the case Johnson v. United States. (See Doc. 7). On June 24, 2015, in a 6-3 opinion, the high Court held that the residual clause of the Armed Criminal Career Act is unconstitutionally vague and, thus violates due process.[1] See Johnson v. United States, No. 13-7120, 2015 WL 2473450 (U.S. June 26, 2015). Now that the Supreme Court has reached a decision, the STAY is LIFTED and the case may proceed.

Now pending before the Court is petitioner’s Motion to Alter or Amend Judgment (Doc. 6) from the Court’s July 29, 2014 Order (Doc. 4) dismissing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. As the Court previously discussed in its Order staying this case (Doc. 7), petitioner’s reliance on Descamp v. United States, __ U.S. __, 133 S.Ct. 2276 (2013) is likely misplaced since it appears that the sentencing court and the Eighth Circuit determined that petitioner’s prior conviction for aiding and abetting third degree robbery was a crime of violence pursuant to the residual clause of the career offender definition under section 4B1.2(a) of the United States Sentencing Guidelines. See United States v. Oman, 427 F.3d 1070, 1076 (8th Cir. 2005). In affirming the sentencing court’s determination, the Eighth Circuit cited prior Eighth Circuit cases, which have held “since burglary always creates a ‘serious potential risk of physical injury to another, ’ it qualifies as a crime of violence.” United States v. Mohr, 407 F.3d 898, 901 (8th Cir. 2005) (quoting United States v. Hascall, 76 F.3d 902, 905 (8th Cir.1996)). Nonetheless, the Court is persuaded that petitioner may be entitled to relief following the Supreme Court’s recent decision in Johnson.

Accordingly, the Court GRANTS petitioner’s Motion to Amend or Alter Judgment (Doc. 6); VACATES the order dismissing the habeas petition (Doc. 4) and the judgment (Doc. 5) in this case; and DIRECTS the Clerk to reopen this case.

Under the circumstances, the Court concludes that petitioner’s request for habeas relief warrants immediate attention. Therefore, in the interest of expediency and, most importantly, justice, it is HEREBY ORDERED that ON OR BEFORE JULY 21, 2015 respondent shall brief the following two issues for the Court: First, what impact, if any, does Johnson have on petitioner’s current sentence? And second, is the Southern District of Illinois a proper venue to resolve petitioner’s request for relief or should this matter be transferred to the district court where petitioner was sentenced? This preliminary order to respond does not, of course, preclude the Government from raising any objection or defense it may wish to present. Service upon the United States Attorney for the Southern District of Illinois, 9 Executive Drive, Fairview Heights, Illinois 62208, shall constitute sufficient service.

Petitioner is ADVISED of his continuing obligation to keep the Clerk (and each opposing party) informed of any change in his whereabouts during the pendency of this action.

IT IS SO ORDERED.


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