United States District Court, D. New Mexico
ORDER GRANTING PETITIONER'S MOTION TO DISMISS
C. HERRERA United States District Judge
matter comes before the Court on Petitioner's Motion to
Dismiss Without Prejudice. Doc. 11. Petitioner filed
a Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255 (and Johnson v. United States) on
June 17, 2016, and filed an amended version of the Motion on
June 27, 2016. Docs. 1, 3. Petitioner's §
2255 petition challenges his enhanced sentence under the
United States Sentencing Guidelines career offender
enhancement on the basis that the residual clause of that
provision of the guidelines is unconstitutionally vague under
the reasoning in Johnson v. United States, 576
U.S.__, 135 S.Ct. 2551 (2015). See doc. 3 at 6-9.
United States filed its Response to the § 2255 petition
on February 10, 2017. Doc. 8. Before the Magistrate
Judge could issue his Proposed Findings and Recommended
Disposition regarding the merits of the petition, the Supreme
Court issued its decision in Beckles v. United
States, 580 U.S.__, No. 15-8544, slip op. (March 6,
2017). In Beckles, the Supreme Court held that the
guidelines are not subject to a void- for-vagueness
challenge. 580 U.S.__, No. 15-8544, slip op. at 5.
Accordingly, the Magistrate Judge ordered that the parties
confer and file a joint statement in light of the impact of
Beckles on the merits of the petition. Doc.
9. The parties conferred and agreed that
Petitioner's § 2255 motion was due to be dismissed.
Doc. 10. Petitioner then filed the instant Motion to
Dismiss Without Prejudice on March 22, 2017, which indicated
that the United States opposes based on its position that the
petition should be dismissed with prejudice. See
doc. 11. The United States did not file a response
articulating grounds to support its position, however. Having
reviewed Petitioner's Motion and being fully advised, the
Court finds the Motion to be well-taken and will grant it.
permits dismissal of an action “on terms that the court
considers proper.” Fed.R.Civ.P. 41(a)(2). Absent legal
prejudice to the respondent, the Court should typically grant
a voluntary dismissal. Ohlander v. Larson, 114 F.3d
1531, 1537 (10th Cir. 1997). Prejudice “does not arise
simply because a second action . . . may be filed against the
[respondent][.]” Brown v. Baeke, 413 F.3d
1121, 1124 (10th Cir. 2005). Rather, in determining whether
legal prejudice to Respondent would be caused by granting
Petitioner's motion, the Court should consider factors
including “the opposing party's effort and expense
in preparing for trial; excessive delay and lack of diligence
on the part of the movant; insufficient explanation of the
need for a dismissal; and the present stage of litigation[,
]” although this list of factors is not exhaustive.
Ohlander, 114 F.3d at 1537. In determining whether
prejudice will result from granting a voluntary dismissal,
the Court “should endeavor to [ensure] substantial
justice is accorded to both parties. . . . [and] therefore
must consider the equities not only facing the [respondent],
but also those facing the [petitioner][.]” Id.
filed this habeas action under 28 U.S.C. §
2255. See docs. 1, 3. Therefore, the first
Ohlander factor-Respondent's effort and expense
in preparing for trial-does not apply to the present action.
The Court acknowledges the effort and expense of the United
States related to briefing Petitioner's § 2255
motion. Doc. 8. However, unlike the circumstances of
a typical civil lawsuit, a subsequent filing of a similar
action by Petitioner would not expose Respondent to damages
or liability. See 28 U.S.C.A. § 2255. A §
2255 motion instead allows a criminal defendant to seek
relief from an allegedly illegal or unconstitutional
sentence, such that the “equities” facing
Petitioner if the Court were to dismiss his action with
prejudice are significant. See Id. § 2255(h);
see also Ohlander, 114 F.3d at 1537.
the Magistrate Judge did not file any Proposed Findings and
Recommended Disposition prior to Petitioner filing his Motion
to Dismiss. Therefore, the situation before the Court is not
one where Petitioner has merely read the “clear
writing on the wall in the form of the magistrate's
report” and conceded defeat based on the contents
therein. See Hurd v. Mondragon, 851 F.2d 324, 328-29
(10th Cir. 1988); see also Haro-Arteaga v.
United States, 199 F.3d 1195, 1197 (1999) (finding that
a § 2255 motion filed after two earlier motions had been
voluntarily dismissed would not be barred because
“‘in order for a habeas petition to be considered
successive, the previous motion must have been denied on the
merits. The district court must have engaged in substantive
review.'” (quoting with approval Garrett v.
United States, 178 F.3d 940, 942 (7th Cir. 1999))).
Moreover, Respondent has offered no basis for a finding that
prejudice to Respondent would result from granting
Petitioner's motion. Absent such a showing, dismissal
without prejudice is appropriate. See Brown, 413
F.3d at 1123-24.
Petitioner's Amended Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255 (doc.