Borboa v. USA

Filing 3

ORDER Granting Defendant's Motion for Voluntary Dismissal; Dismissing Defendant's Motion to Vacate, Set Aside, or Correct Conviction and Sentence Pursuant to 28 U.S.C. § 2255. Signed by Judge Michael M. Anello on 4/7/2017.(ag)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 12cr286-MMA-2 Related Case No.: 16cv1377 UNITED STATES OF AMERICA, Plaintiff, 12 13 v. 14 MANUEL BORBOA (2), 15 ORDER GRANTING DEFENDANT’S MOTION FOR VOLUNTARY DISMISSAL; Defendant. [Doc. No. 433] 16 DISMISSING DEFENDANT’S MOTION TO VACATE, SET ASIDE, OR CORRECT CONVICTION AND SENTENCE PURSUANT TO 28 U.S.C. § 2255 17 18 19 20 [Doc. No. 402] 21 22 23 On May 31, 2012, Defendant Manuel Borboa pleaded guilty to conspiring to 24 distribute methamphetamine, in violation of Title 21, United States Code, sections 25 841(a)(1) and 846. See Doc. No. 138. The Court sentenced Defendant to a term of 262 26 months imprisonment. See Doc. No. 246. On June 6, 2016, Defendant, proceeding 27 through counsel, filed a motion to vacate, set aside, or correct his conviction and sentence 28 pursuant to 28 U.S.C. § 2255, based on the Supreme Court’s holding in Johnson v. 1 12cr286-MMA-2 1 United States, 576 U.S. ---, 135 S. Ct. 2551 (2015), and a related constitutional challenge 2 to Section 4B1.2(a) of the United States Sentencing Guidelines. See Doc. Nos. 402, 404. 3 On March 6, 2017, the Supreme Court ruled that Johnson’s holding does not extend to 4 the Sentencing Guidelines, in so far as “the advisory Guidelines are not subject to 5 vagueness challenges under the Due Process Clause.” Beckles v. United States, 137 S. 6 Ct. 886, 197 L. Ed. 2d 145 (2017). 7 Defendant now moves for voluntary dismissal of his 2255 motion under Federal 8 Rule of Civil Procedure 41(a).1 See Doc. No. 433. Under Beckles, “it plainly appears 9 from the face of the motion” that Defendant “is not entitled to relief.” See Rule 4(b) of 10 the Rules Governing Section 2255 Proceedings for the United States District Courts. As 11 such, the Court finds that dismissal of Defendant’s 2255 motion is appropriate. 12 Accordingly, the Court DISMISSES Defendant’s pending 2255 motion pursuant 13 to Federal Rule of Civil Procedure 41(a)(2). The Court DECLINES to issue a certificate 14 of appealability. The Clerk of Court is instructed to close the related civil case. 15 16 IT IS SO ORDERED. DATE: April 7, 2017 17 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge 18 19 20 21 22 23                                                 24 1 25 26 27 28 The Court may apply the Federal Rules of Civil Procedure to this proceeding as set forth in Rule 12 of the Rules Governing Section 2255 Proceedings for the United States District Courts. Defendant moves for dismissal pursuant to Rule 41(a)(1)(A)(i), which provides for dismissal without a court order before the opposing party serves an answer or motion for summary judgment. However, as Defendant acknowledges, the government filed a response to Defendant’s 2255 motion. Therefore, dismissal is arguably not appropriate under Rule 41(a)(1)(A)(i). Rather, Rule 41(a)(2) applies, which states in pertinent part: “Except as provided in Rule 41(a)(1), an action may be dismissed at the [moving party’s] request only by court order . . .” 2 12cr286-MMA-2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?