United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Defendant Richard Valdez's Motion  to
Vacate Sentence and Defendant Valdez's Motion  for
Voluntary Dismissal of Pending Motion. The Court grants the
latter motion and dismisses it without prejudice.
pleaded guilty, pursuant to a plea agreement, to unlawful
possession of a firearm by a previously convicted felon in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
ECF Nos. 89, 90. On August 7, 2012, this Court sentenced
Defendant to 110 months' imprisonment after finding that
he had a prior conviction that qualified as a “crime of
violence” under U.S.S.G. § 4B1.2(a), which in turn
resulted in an increased base offense level under U.S.S.G.
§ 2K2.1(a)(4)(A). Judgment was entered on August 8,
2012. ECF No. 99. The Ninth Circuit dismissed Defendant's
appeal on December 30, 2013. ECF No. 120.
than a two years later, on June 16, 2016, Defendant filed an
abridged motion to vacate sentence under 28 U.S.C. §
2255, ECF No. 125, and he filed a complete § 2255 motion
on October 14, 2016. ECF No. 129. In his motion, Defendant
contends that he is entitled to collateral relief under
Johnson v. United States, 135 S.Ct. 2551 (2015).
Specifically, he contends (1) that in light of
Johnson's holding that the ACCA's residual
clause is unconstitutionally vague, the identically worded
residual clause in the career offender guideline, USSG §
4B1.2, is also unconstitutionally vague; (2) that
invalidation of the career offender residual clause on
constitutional vagueness grounds is retroactively applicable
to cases on collateral review; and (3) that using a base
offense level predicated on a prior conviction for a crime of
violence under USSG § 2K2.1 violated his due process
rights because his prior conviction no longer qualifies as a
crime of violence in light of Johnson.
government filed its response to Defendant's motion on
November 30, 2016. ECF No. 131. The government argues 1) that
Defendant's prior felony conviction for robbery with use
of a deadly weapon qualifies as a crime of violence based on
its elements, and thus the residual clause is irrelevant; 2)
that if the Court were to conclude that a decision on
Defendant's motion required resolution of the legal
question whether Johnson's invalidation of the
ACCA residual clause provides any possibility of retroactive
relief to cases of collateral review for defendants
challenging their guidelines calculations, it should stay
proceedings pending resolution of that question by the
Supreme Court in Beckles v. United States, No.
15-8544; and 3) that, in any event, that Johnson
does not apply retroactively to Guidelines challenges on
collateral review. ECF No. 131. On March 6, 2017, the Supreme
Court issued its decision in Beckles v. United
States, 137 S.Ct. 886 (2017). In Beckles, the
Supreme Court held that “the advisory Sentencing
Guidelines are not subject to a vagueness challenge under the
Due Process Clause and that §4B1.2(a)'s residual
clause is not void for vagueness.” Id. at 895.
April 20, 2017, Defendant filed the instant motion for
voluntary dismissal of his § 2255 motion. ECF No. 136.
federal prisoner may move to “vacate, set aside or
correct” his sentence if it “was imposed in
violation of the Constitution.” 28 U.S.C. §
2255(a). Under 28 U.S.C. § 2255(f)(3), the one-year
statute of limitations for seeking habeas relief runs from
“the date on which the right asserted was initially
recognized by the Supreme Court.” Id. Denial
of a habeas petition or motion is also appropriate where
“the motion and the files and records of the case
conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b).
Rule of Civil Procedure 41(a)(1)(A)(i) allows for the
voluntary dismissal of a case by a plaintiff without a court
order where a notice of dismissal is filed before the
opposing party has answered or filed a motion for summary
judgment. Rule 41(a)(2) permits dismissal by a court at the
request of the plaintiff “on terms that the court
considers proper.” Id.
district court should grant a motion for voluntary dismissal
under Rule 41(a)(2) unless a defendant can show that it will
suffer some plain legal prejudice as a result.”
Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001).
“[T]he the threat of future litigation which causes
uncertainty is insufficient to establish plain legal
prejudice.” Westlands Water Dist. v. United
States, 100 F.3d 94, 96 (9th Cir. 1996).