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)

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