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United States v. Long

United States District Court, D. Nevada

September 18, 2019

UNITED STATES OF AMERICA, Respondent/Plaintiff,
v.
DAMON COREY LONG, Petitioner/Defendant.

          ORDER

          Gloria M. Navarro, District Judge United States District Court.

         Pending 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).

         Also before the Court is Petitioner’s Motion for Voluntarily Dismissal, (ECF No. 32), [1] 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.

         I. BACKGROUND

         On May 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. (See J.).

         On June 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. 6:13–8:22).

         On 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).

         On June 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.

         II. LEGAL STANDARD

         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 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).

         Federal 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.”

         III. DISCUSSION

         The 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).

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


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