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United States v. Sullivan

United States District Court, D. Nevada

April 8, 2019

UNITED STATES OF AMERICA, Respondent/Plaintiff,
MARCUS SULLIVAN, Petitioner/Defendant.


          Gloria M. Navarro, Chief Judge United States District Court

         Pending 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).

         Also 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).

         For the reasons discussed below, Petitioner's Motion for Voluntary Dismissal is GRANTED and the Government's Motion to Dismiss is DENIED as moot.

         I. BACKGROUND

         On 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 custody”).

         On June 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).

         On 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).


         Under 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).

         FRCP 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.”


         The 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 FRCP 41(a)(2).

         The 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 ‚Äúprejudice to some legal interest, some legal claim, some ...

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