United States District Court, D. Nevada
before the court is petitioner Ivan Gonzalez-Corporan's
motion for voluntary dismissal of pending motion to vacate,
set aside, or correct sentence pursuant to 28 U.S.C. §
2255 (ECF No. 159). (ECF No. 173).
before the court is petitioner's motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.
(ECF No. 159). The government filed a response (ECF No. 169),
to which petitioner replied (ECF No. 170).
before the court is the government's unopposed motion to
extend time. (ECF No. 167).
before the court is petitioner's motion to defer ruling
for 30 days. (ECF No. 172).
moves to voluntarily dismiss, pursuant to Federal Rule of
Civil Procedure 41(a)(2), his motion to vacate under §
2255 (ECF No. 159), asserting that he no longer seeks relief
thereunder. (ECF No. 173). Because petitioner moves to
voluntarily dismiss his § 2255 motion pursuant to Rule
41(a)(2), not Rule 41(a)(1), the government's stipulation
is not required.
Rule of Civil Procedure 41(a) governs voluntary dismissal of
actions and provides as follows:
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e),
23.1(c), 23.2, and 66 and any applicable federal statute, the
plaintiff may dismiss an action without a court order by
(i) a notice of dismissal before the opposing party serves
either an answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who
(B) Effect. Unless the notice or stipulation states
otherwise, the dismissal is without prejudice. But if the
plaintiff previously dismissed any federal-or state-court
action based on or including the same claim, a notice of
dismissal operates as an adjudication on the merits.
(2) By Court Order; Effect. Except as provided in
Rule 41(a)(1), an action may be dismissed at the
plaintiff's request only by court order, on terms that
the court considers proper. If a defendant has pleaded a
counterclaim before being served with the plaintiff's
motion to dismiss, the action may be dismissed over the
defendant's objection only if the counterclaim can remain
pending for independent adjudication. Unless the order states
otherwise, a dismissal under this paragraph (2) is without
Fed. R. Civ. P. 41(a).
no counterclaim has been filed. Therefore, dismissal under
Rule 41(a)(2) is proper. Nonetheless, the court finds the
better course for dismissal of petitioner's § 2255
motion to be on the merits and based on the statute of
limitations rather than Rule 41(a)(2).