United States District Court, D. South Dakota, Western Division
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE.
Winters (Winters) seeks to invalidate his conviction for use
of a firearm in relation to a crime of violence in violation
of 18 U.S.C. § 924(c). Winters filed a 28 U.S.C. §
2255 motion in which he sought to vacate the § 924(c)
conviction based on Johnson v. United States, ___
U.S. ___, 135 S.Ct. 2551 (2015) (holding that
residual clause of the Armed Career Criminal Act (ACCA) at 18
U.S.C. § 924(e) is unconstitutionally vague). This Court
denied relief to Winters in light of United States v.
Prickett, 839 F.3d 697 (8th Cir. 2016) (per curiam)
(holding that Johnson does not render §
924(c)(3)(B) unconstitutionally vague), cert, denied.,
___ U.S. ___, 138 S.Ct. 1976 (2018), but
granted Winters a certificate of appealability "[d]ue to
the generally unsettled nature of the law on whether the rule
announced in Johnson invalidates the residual clause
of § 924(c), and the possibility that the United States
Supreme Court someday might resolve the circuit splits that
are developing in this area of the law." (Doc. 14.) On
appeal, the Eighth Circuit affirmed denial of relief to
Winters based on Prickett. (Doc. 19.) Winters filed
a petition for a writ of certiorari with the United States
April 17, 2018, the United States Supreme Court decided
Sessions v. Dimaya, ___ U.S.___, 138 S.Ct.
1204 (2018). The question addressed in Dimaya was
whether the residual clause of the Immigration and
Nationality Act, 18 U.S.C. § 16(b), "suffer[ed]
from the same constitutional defect" as the similarly
worded residual clause of the ACCA, 18 U.S.C. §
924(e)(2)(B), that the Supreme Court previously invalidated
in Johnson, See Dimaya, 138 S.Ct. at 1210. After
analyzing § 16(b), the Supreme Court observed that, like
the residual clause of the ACCA, "the clause had both an
ordinary-case requirement and an ill-defined risk
threshold." Id. at 1223. Thus, because
"just like ACCA's residual clause, § 16(b)
'produces more unpredictability and arbitrariness than
the Due Process Clause tolerates[, ]'" the Supreme
Court concluded that § 16(b) was similarly void for
vagueness. Id. (quoting Johnson, 135 S.Ct.
15, 2018, the United States Supreme Court remanded
Winters' case to the Eighth Circuit for further
consideration in light of Dimaya. Three circuit
courts have held the § 924(c)(3)(B) residual clause
unconstitutionally vague since Dimaya because the
language is virtually identical to to that in § 16(b).
See United States v. Salas, 889 F.3d 681, 686 (10th
Cir. 2018); United States v. Eshetu, 898 F.3d 36, 37
(D.C. Cir. 2018) (on petition for panel rehearing);
United States v. Davis, 903 F.3d 483, 486 (5th Cir.
2018). On September 17, 2018, the Eighth Circuit issued a
mandate remanding Winters' case to this Court for further
reconsideration in light of Dimaya.
Court appointed a lawyer to assist Winters in briefing the
effect that Dimaya has on the question whether
§ 924(c)(3)(B)'s residual clause is
unconstitutionally vague, including whether the Eighth
Circuit's decision in Prickett remains binding
after Dimaya. Briefing was completed in
December. The government states that there are a
number of cases pending before the Eighth Circuit regarding
this issue. (Doc. 34 at 2.) On November 29, 2018, the
government filed a motion to hold this proceeding in abeyance
pending a decision from the Eighth Circuit, arguing that a
decision in this case "will be subject to upheaval
depending upon the outcome of the various matters before the
courts of appeals." (Doc. 34.) Winters opposed the
motion to hold the case in abeyance. (Doc. 36.)
January 4, 2019, the United States Supreme Court granted the
government's petition for a writ of certiorari in
United States v. Davis to determine whether 18
U.S.C. § 924(c)(3)(B) is unconstitutionally vague.
See United States v. Davis, 2019 WL 98544 (S.Ct.
Jan. 4, 2019). The government supplemented its motion to hold
this case in abeyance after the petition for certiorari was
granted in Davis. (Doc. 37.)
Court finds that holding this proceeding in abeyance pending
the Supreme Court's decision in Davis is the
most economical method of handling this case. Accordingly, IT
1. That the Government's Motion to Hold Case in Abeyance,
doc. 33, is granted; and
2. That this case is held in abeyance until the Supreme Court
issues the decision in United States v. Davis, No.
 The government has conceded that
Dimaya undermined Prickett's holding
that the categorical approach applies to § 924(c)'s
residual clause, and the government now advocates for ...