United States District Court, D. Nevada
M. Navarro, District Judge United States District Court.
before the Court is Petitioner Damon Corey Long’s
(“Petitioner”) Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28U.S.C. § 2255
(“2255 Motion”), (ECF Nos. 25, 26). The
Government filed a Response, (ECF No. 29), and Petitioner
filed a Reply, (ECF No. 30).
before the Court is Petitioner’s Motion for Voluntarily
Dismissal, (ECF No. 32),  of the 2255 Motion. For the reasons
discussed below, Petitioner’s Motion for Voluntary
Dismissal is GRANTED, and the 2255 Motion is
DISMISSED without prejudice.
13, 2013, 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). (Mins. Proceedings, ECF
No. 17); (J., ECF No. 23). The Court accordingly sentenced
Petitioner to a term of 92 months’ imprisonment.
16, 2016, Petitioner filed an Abridged 2255 Motion, (ECF No.
25), followed by a comprehensive 2255 Motion, (ECF No. 26),
on December 6, 2016, 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.
6:13–8:22, ECF No. 26). 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. (2255 Mot.
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
1:18–2:2, ECF No. 31). Petitioner thereafter filed a
Motion for Voluntary Dismissal of his 2255 Motion under
Federal Rule of Civil Procedure 41(a)(2), which the Court
denied on May 23, 2018. (Mot. Voluntary Dismissal
1:19–2:2, ECF No. 32); (Min. Order, ECF No. 34).
25, 2018, the Court held a hearing on Petitioner’s 2255
Motion. (Mins. Proceedings, ECF No. 38). During the hearing
counsel for Petitioner renewed the Motion for Voluntary
Dismissal. (See id.). The Court heard arguments and
ordered supplemental briefing, which the parties later
submitted, (ECF Nos. 39, 40). This Order now follows.
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 on grounds other than the
merits would allow Petitioner to escape rules that prevent
successive 2255 motions. (See, e.g., Gov’t
Suppl. Brief 2:10–17, ECF No. 39) (citing United
States v. Armstrong, No. 3:06-cr-00073-HDM (D. Nev. June
26, 2017)). 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 ...