United States District Court, D. New Mexico
Michael A. Keefe Assistant Federal Public Defender Attorney
for the Petitioner
Shaheen P. Torgoley Assistant United States Attorney Attorney
for the Respondent
MEMORANDUM OPINION AND ORDER GRANTING
PETITIONER'S MOTION TO DISMISS WITHOUT PREJUDICE
MATTER comes before the Court on the Petitioner's Motion
to Dismiss Without Prejudice, filed March 28, 2017 (Doc. 16).
Petitioner Lawrence Valdez filed a Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255 (and
Johnson v. United States), filed on June 27, 2016
(Doc. 1)(“§ 2255 Petition”), and filed an
Amendment to Motion to Vacate and Correct Sentence Pursuant
to 28 U.S.C. § 2255, filed July 13, 2016 (Doc.
5)(“Amended Petition”)(collectively referred to
as “§ 2255 Motions”). Valdez' §
2255 Petition challenges the validity of his sentence, to
which he stipulated in his guilty plea because he was facing
a guideline range that was enhanced pursuant to
§2K2.1(a)(2) of the United States Sentencing Guidelines.
See Amended Petition at 2-3.
argues that his predicate offense of burglary of a dwelling
partially underlying the §2K2.1(a)(2) enhancement is no
longer a “crime of violence” in light of
Johnson v. United States, 576 U.S.__, 135 S.Ct. 2551
(2015), which struck down the residual clause of the
“crime of violence” definition as
unconstitutionally vague. Amended Petition at 3-11. Valdez
argues that the burglary offense constituted a “crime
of violence” only under the now-invalidated residual
clause. Amended Petition at 4-11. Valdez therefore asserts
that he is entitled to resentencing, because the term of
imprisonment to which he agreed in his guilty plea exceeds
the guideline range that would have been applicable to his
sentence absent the §2K2.1(a)(2) enhancement.
See Amended Petition at 1-3, 11. The United States
filed its Response to the § 2255 Petition on September
29, 2016, see United States' Response to
Valdez' Amendment to Motion to Vacate [a]nd Correct
Sentence Pursuant to 28 U.S.C. § 2255, filed September
29, 2016 (Doc. 8), and Valdez filed his reply on October 5,
2016, see Reply to Government's Response to
Defendant's Amendment to Motion to Vacate and Correct
Sentence Pursuant to 28 U.S.C. § 2255, filed October 5,
2016 (Doc. 9). The Honorable Gregory B. Wormuth, United
States Magistrate Judge for the District of New Mexico issued
a Proposed Findings and Recommended Disposition
(“PFRD”) recommending dismissal of the petition
on December 6, 2016. See Proposed Findings and
Recommended Disposition, filed December 6, 2016 (Doc. 10).
Valdez filed Objections to the PFRD on December 30, 2016.
See Petitioner's Objections to the Magistrate
Judge's Proposed Findings and Recommended Disposition,
filed December 30, 2016 (Doc. 13).
the Court could issue a ruling on Valdez' § 2255
Motions, the Supreme Court of the United States of America
issued its decision in Beckles v. United States, 580
U.S.__, No. 15-8544, slip op. (March 6, 2017). In Beckles
v. United States, the Supreme Court held that the
guidelines are not subject to a void-for-vagueness challenge.
See 580 U.S.__, No. 15-8544, slip op. at 5.
Magistrate Judge Wormuth ordered that the parties confer and
file a joint statement in light of the impact of Beckles
v. United States on the merits of the § 2255
Motions. See Order Directing Supplemental Briefing
in Light of Beckles, filed March 23, 2017 (Doc. 15).
According to Valdez' Motion to Dismiss Without Prejudice,
the parties conferred and agreed that the Court should
dismiss Valdez' § 2255 Motion, but disagreed whether
the Court should dismiss the case with or without prejudice.
See Motion to Dismiss Without Prejudice at 2. The
United States did not, however, file a response to
Valdez' Motion to Dismiss Without Prejudice articulating
grounds to support its position that the Court should dismiss
the § 2255 Motions with prejudice. Having reviewed
§ 2255 Motions and being fully advised, the Court
concludes that the Motion to Dismiss Without Prejudice has
merit and will grant it.
of the Federal Rules of Civil Procedure 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. See 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 granting Valdez' § 2255 Motions would cause
legal prejudice to the United States, 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 v. Larson, 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][.]” Ohlander v. Larson, 114 F.3d
filed this habeas action under 28 U.S.C. § 2255. The
first Ohlander v. Larson factor -- the United
States' effort and expense in preparing for trial -- does
not apply to this action. The Court acknowledges the United
States' effort and expense related to briefing
Valdez' § 2255 motion. Unlike the circumstances of a
typical civil lawsuit, however, Valdez' subsequent filing
of a similar action would not expose the United States to
damages or liability. See 28 U.S.C. § 2255. A
§ 2255 motion instead allows a criminal defendant to
seek relief from an allegedly illegal or unconstitutional
sentence, such that the “equities” facing Valdez
if the Court were to dismiss his action with prejudice are
significant. See 28 U.S.C. § 2255(h). See
also Ohlander v. Larson, 114 F.3d at 1537.
the United States has offered no sound basis for a conclusion
that prejudice to it would result from granting Valdez'
Petitioner's § 2255 Motions. Absent such a showing,
dismissal without prejudice is appropriate. See Brown v.
Baeke,, 413 F.3d at 1123-24.
ORDERED that the Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255, filed
on June ...