United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE
before the Court is Petitioner Bilal Fuller's
(“Petitioner's”) Motion for Voluntarily
Dismissal, (ECF No. 64), of the Motion to Vacate, Set Aside,
or Correct Sentence Pursuant to 28 U.S.C. § 2255
(“2255 Motion”), (ECF Nos. 57, 58). The
Government did not file a response, and the time to do so has
pending before the Court is the Government's Motion to
Dismiss Petitioner's 2255 Motion, (ECF No. 60).
Petitioner filed a Response, (ECF No. 61), and the Government
filed a Reply, (ECF No. 62).
reasons discussed below, Petitioner's Motion for
Voluntary Dismissal is GRANTED.
Additionally, the Government's Motion to Dismiss is
DENIED as moot.
January 17, 2012, Petitioner pleaded guilty to one count of
possession of a stolen firearm in violation of 18 U.S.C.
§ 922(j). (Plea Mem., ECF No. 45); (Mins. Proceedings,
ECF No. 47). The Court thus sentenced Petitioner to a term of
120 months imprisonment. (J., ECF No. 55).
22, 2016, Petitioner filed an Abridged 2255 Motion, (ECF No.
57), followed by a comprehensive 2255 Motion on December 23,
2016, (ECF No. 58), arguing that the Court's 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. 58). 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
position that both provisions, and any sentences imposed
under them, are invalid. (Id. 8:10-9:2).
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 Beckles
decision, and requested the Court to defer ruling on the 2255
Motion for thirty days. (Notice 2:1-3, ECF No. 63).
Petitioner thereafter filed a Motion for Voluntary Dismissal
of his 2255 Motion under Federal Rule of Civil Procedure
(“FRCP”) 41. (Mot. Voluntary Dismissal 1:18-2:2,
ECF No. 64).
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 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.”
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 plain 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 legal
argument.” Westlands Water Dist. v. United
States, 100 F.3d 94, 97 (9th Cir. 1996).
the Government has not shown it will suffer legal prejudice
if the Court grants Petitioner's request to voluntarily
dismiss his 2255 Motion. Though voluntary dismissal may
conceivably go against finality by not decisively precluding
a future 2255 motion on the same grounds, the Ninth Circuit
has found uncertainty of a future, potential second lawsuit
as insufficient to establish plain legal prejudice in the
context of an FRCP 41(a)(2) motion. See Westlands Water
Dist., 100 F.3d at 96 (“[T]he threat of future
litigation which causes uncertainty is insufficient to
establish plain legal prejudice.”); Hamilton v.
Firestone Tire & Rubber Co., 679 F.2d 143, 145-46
(9th Cir. 1982) (“Appellant's contention that
appellee should have been estopped from requesting a
voluntary dismissal, because appellant was put to significant