United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT COURT.
before the Court is Petitioner Jopresley Wise's
(“Petitioner”) Motion for Voluntary Dismissal,
(ECF No. 42), of the Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (“2255
Motion”), (ECF Nos. 35, 37). The Government filed a
Response, (ECF No. 43), and Petitioner filed a Reply, (ECF
No. 44). For the reasons discussed below, Petitioner's
Motion for Voluntary Dismissal is GRANTED.
April 9, 2012, Petitioner pled guilty to one count of felon
in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). (Plea Mem., ECF No.
28); (Mins. Proceedings, ECF No. 25). The Court accordingly
sentenced Petitioner to a term of 77 months' imprisonment
with credit for time served. (J., ECF No. 33).
16, 2016, Petitioner filed an Abridged 2255 Motion, (ECF No.
35), followed by a comprehensive 2255 Motion on December 9,
2016, (ECF No. 37), 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.
6:12-9:3, ECF No. 37). 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.).
March 6, 2017, the U.S. 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. Roughly two weeks
later, Petitioner filed a notice concerning the
Beckles decision, and requested that the Court defer
ruling on the 2255 Motion for thirty days. (Notice 1:19-2:2,
ECF No. 41). Petitioner thereafter filed a Motion for
Voluntary Dismissal of his 2255 Motion under Federal Rule of
Civil Procedure 41(a)(2). (Mot. Voluntary Dismissal 1:19-2:2,
ECF No. 42); (Reply 3:26 n.1, ECF No. 44).
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).
Rule of Civil Procedure (“Rule”) 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.”
Government opposes Petitioner's Motion for Voluntary
Dismissal by arguing that dismissal under Rule 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. 4:16-5:15, ECF No. 43). 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 Rule 41(a)(2).
Court's discretion to grant dismissal under Rule 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 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 the Government argues that
voluntary dismissal goes against finality by not decisively
precluding a future 2255 motion on the same grounds, (Resp.
4:16-5:2), the Ninth Circuit has found uncertainty of a
future, potential second lawsuit to be generally insufficient
to establish plain legal prejudice in the context of a Rule
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 expense in preparing and
filing its pleadings, is without merit.”); In re
Lowenschuss, 67 F.3d 1394, 1400-01 (9th Cir. 1995)
(“[T]he inconvenience of defending another lawsuit . .
. does not constitute prejudice.”); see also Cook
v. United States, No. 1:10-cr-00167-BLW, 2018 WL
2024609, at *2 (D. Idaho May 1, 2018).
regardless of whether the Court permits Petitioner to
voluntarily dismiss his 2255 Motion or denies the 2255 Motion
on the merits, Petitioner will not obtain any relief from his
sentence as a result of his filing. Petitioner also would
need to distinguish the present 2255 Motion, and the reasons
underlying the current voluntary dismissal, if any future
2255 motion arose.United States v. Salisbury, No.
2:11-cr-00317-LDG-CWH, 2017 WL 3484649, at *1 (D. Nev. Aug.
11, 2017) (explaining that any future 2255 motion would
“undoubtedly” require the petitioner to establish
how prior motions do not bar the future motion);
Rodrigues v. United States, No. 16-00149 HG, 2016 WL
1465328, at *3 (D. Haw. Apr. 14, 2016) (discussing a district
court's ability to refer a second or successive petition
to the court of appeals). Voluntary dismissal without an
adjudication on the merits thus conserves judicial ...