United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court
before the Court is Petitioner Marcus Sullivan's
(“Petitioner's”) Motion for Voluntary
Dismissal, (ECF No. 63), of his Motion to Vacate, Set Aside,
or Correct Sentence Pursuant to 28 U.S.C. § 2255
(“2255 Motion”), (ECF Nos. 54, 55). The
Government filed a Response, (ECF No. 64), and Petitioner
filed a Reply, (ECF No. 65).
pending before the Court is the “Government's
Motion to Dismiss Petitioner's 2255 Motion, (ECF No. 57).
Petitioner filed a Response, (ECF No. 58), and the Government
filed a Reply, (ECF No. 59).
reasons discussed below, Petitioner's Motion for
Voluntary Dismissal is GRANTED and the
Government's Motion to Dismiss is DENIED as
March 3, 2011, Petitioner pleaded guilty to one count of
possession of a stolen firearm under 18 U.S.C. § 922(j).
(Plea Mem., ECF No. 39); (Mins. Proceedings, ECF No. 35). The
Court accordingly sentenced Petitioner to a term of 120
months imprisonment. (J., ECF 46); (Plea Mem., ECF No. 39)
(stating “the parties agree that the defendant is to
receive a sentence of one hundred and twenty (120) months in
24, 2016, Petitioner filed an Abridged 2255 Motion, (ECF No.
54), followed by a comprehensive 2255 Motion on December 27,
2016, (ECF No. 55), arguing that his sentence violates due
process because the Court imposed it under an
unconstitutionally vague portion of the United States
Sentencing Guidelines (“U.S.S.G”). (2255 Mot.
3:2-9, ECF No. 55). Petitioner's vagueness argument
relies on Johnson v. United States, 135 S.Ct. 2551
(2015). In Johnson, the U.S. Supreme Court ruled
that the residual clause of the Armed Career Criminal Act
(ACCA) was unconstitutionally vague. Johnson, 135
S.Ct. at 2557. Petitioner accordingly points to language in
U.S.S.G § 4B1.2's residual clause, which is
identical to that of the ACCA's residual clause, for the
proposition that both provisions, and any sentences imposed
under them, are invalid. (Id. 7:22-9:13).
March 6, 2017, the Supreme Court issued its decision in
Beckles v. United States, 137 S.Ct. 886 (2017). In
Beckles, the Court held that “the advisory
Sentencing Guidelines are not subject to a vagueness
challenge under the Due Process Clause and §
4B1.2(a)'s residual clause is not void for
vagueness.” Id. at 895. Roughly two weeks
later, Petitioner notified the Court of the U.S. Supreme
Court's decision in Beckles v. United States,
137 S.Ct. 886 (2017), and requested that the Court defer
ruling on the 2255 Motion for thirty days. (Notice 2:1-3, ECF
No. 60). Petitioner thereafter filed a Motion for Voluntary
Dismissal of his 2255 Motion under Federal Rule of Civil
Procedure (“FRCP”) 41. (Mot. Voluntary Dismissal
1:19-2:3, ECF No. 63).
28 U.S.C. § 2255, a petitioner may file a motion
requesting the Court which imposed sentence to vacate, set
aside, or correct the sentence. 28 U.S.C. § 2255(a).
Such a motion may be brought on the following grounds:
“(1) the sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was
without jurisdiction to impose the sentence; (3) the sentence
was in excess of the maximum authorized by law; or (4) the
sentence is otherwise subject to collateral attack.”
Id.; see United States v. Berry, 624 F.3d
1031, 1038 (9th Cir. 2010). Motions pursuant to § 2255
must be filed within one year from “the date on which
the judgment of conviction becomes final.” 28 U.S.C.
§ 2255(f)(1). The Federal Rules of Civil Procedure
(“FRCP”) apply to petitions under 28 U.S.C.
§ 2255 “to the extent that they are not
inconsistent with any statutory provisions or [the Rules
Governing Section 2255 Cases].” R. 12, Rules Governing
Section 2255 Proceedings (2019).
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. FRCP 41(a)(2) permits
dismissal by a court at the request of the plaintiff
“on terms that the court considers proper.”
Government opposes Petitioner's Motion for Voluntary
Dismissal by arguing that dismissal under FRCP 41 is
inconsistent with the rules governing petitions under 28
U.S.C. § 2255-specifically, the framework of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). (Resp. 4:12-5:13, ECF No. 64).
Moreover, the Government argues that dismissal on grounds
other than the merits would allow Petitioner to escape rules
that prevent successive 2255 Motions. (Id.). The
Court, however, disagrees; permitting Petitioner to
voluntarily withdraw his 2255 Motion is appropriate under
Court's discretion to grant dismissal under FRCP 41(a)(2)
focuses primarily on whether the opposing party can show that
it will suffer some legal prejudice as a result. Smith v.
Lenches, 263 F.3d 972, 975 (9th Cir. 2001) (citations
omitted). Legal prejudice means “prejudice to some
legal interest, some legal claim, some ...