United States District Court, D. Nevada
before the court is Ray Lucero Aguilara's
(“petitioner”) motion for voluntary dismissal of
his pending motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255. (ECF No. 52). The United
States responded in opposition to his motion (ECF No. 53),
and petitioner replied (ECF No. 54).
moves to voluntarily dismiss his § 2255 motion pursuant
to Federal Rule of Civil Procedure 41(a)(1)(A)(i), asserting
that he no longer seeks relief thereunder. (ECF No. 52).
to Federal Rule of Civil Procedure 41(a)(1), which governs
voluntary dismissal of actions: “the plaintiff may
dismiss an action without a court order by filing: (i) a
notice of dismissal before the opposing party serves either
an answer or a motion for summary judgment.”
Specifically, petitioner argues that his notice was filed
“before the opposing party serve[d] an answer or a
motion for summary judgment.” (ECF No. 54 at 3);
Fed.R.Civ.P. 41(a). Additionally, the petitioner cites to
Hamilton v. Shearson-Lehman Am. Exp., Inc., which
states that: “Until an adverse party files an answer or
a motion for summary judgment, the plaintiff can have the
action dismissed merely by filing a notice of dismissal with
the clerk. Rule 41(a)(1)(A)(i) does not require leave of
court to dismiss the action.” 813 F.2d 1532, 1534 (9th
the petitioner may voluntarily dismiss his action under rule
41(a)(1)(A)(i), he may only do so when it is not inconsistent
with any “statutory provisions or [the Rules Governing
Section 2255 Cases].” Rules Governing Section 2255 R.
12. Furthermore, while petitioner may freely submit his
motion, he is constrained by 28 U.S.C. § 2255(b) which
Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief,
the court shall cause notice thereof to be served upon the
United States attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and
conclusions of law with respect thereto.
instant case, the petitioner's underlying motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255 relies on Johnson v. United States, 135
S.Ct. 2551 (2015). (ECF No. 46). His arguments fail as a
matter of law, and he is entitled to no relief because the
Court's decision in Beckles v. United States
effectively and conclusively preclude him from relying on
Johnson. See 137 S.Ct. 886, 892, 895
consistent with this court's previous holdings, the court
will dismiss the petitioner's § 2255 motion based on
the statute of limitations and on the merits. See
generally, United States v. Cirino et al,
2:03-cr-00176-JCM, ECF No. 175 at 2 (D. Nev. Apr. 26, 2017)
(holding that “the better course for dismissal of
petitioner's § 2255 motion to be on the merits and
based on the statute of limitations” as it relates to
petitions relying on Johnson); United States v.
Logan, 2:07-cr-00037-JCM-RJJ, ECF No. 44 at 2 (D. Nev.
Apr. 26, 2017); United States v. Hoffman,
2:13-cr-00310-JCM-CWH, ECF No. 91 at 2 (D. Nev. Apr. 26,
28 U.S.C. § 2255
prisoners “may move . . . to vacate, set aside or
correct [their] sentence” if the court imposed the
sentence “in violation of the Constitution or laws of
the United States.” 28 U.S.C. § 2255(a). Section
2255 relief should be granted only where “a fundamental
defect” caused “a complete miscarriage of
justice.” Davis v. United States, 417 U.S.
333, 345 (1974); see also Hill v. United States, 368
U.S. 424, 428 (1962).
on § 2255 motions are based on the fact that the movant
“already has had a fair opportunity to present his
federal claims to a federal forum, ” whether or not the
movant took advantage of the opportunity. United States
v. Frady, 456 U.S. 152, 164 (1982). Section 2255
“is not designed to provide criminal defendants
multiple opportunities to challenge their sentence.”
United States v. Johnson, 988 F.2d 941, 945 (9th
the petitioner's underlying motion for voluntary
dismissal-which relied on Johnson-is in response to
the Court's ruling in Beckles. (ECF Nos. 51-52).
The United States' response sets forth two main reasons
to deny petitioner's claim rather than allowing voluntary
dismissal under rule 41(a). (ECF No. 53).
the advisory sentencing guidelines are not subject to a
vagueness challenge under the Due Process Clause.
Beckles 137 S.Ct. at 895. In particular, the Supreme
Court found, in relevant part, as follows:
Unlike the ACCA, however, the advisory Guidelines do not fix
the permissible range of sentences. To the contrary, they
merely guide the exercise of a court's discretion in
choosing an appropriate sentence within the statutory range.
Accordingly, the Guidelines are not subject to a vagueness
challenge under the Due Process ...