Kushiyama v. USA

Filing 5

ORDER GRANTING VOLUNTARY DISMISSAL OF PETITIONERS MOTION UNDER28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY APERSON IN FEDERAL CUSTODY (ECF No. 79) re 1 , 4 as to Lorin Kushiyama, Jr. - Signed by JUDGE HELEN GILLMOR on 7 /5/2017. "Petitioner's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence (ECF No. 79) is DISMISSED pursuant to Fed. R. Civ. P. 41(a)(2). The Clerk of Court is DIRECTED to CLOSE Civil No. 16- 00312HG-KJM.&quo t;(CR 10-00339 HG-01; CV 16-00312 HG-KJM) (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LORIN KUSHIYAMA,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Crim. No. 10-00339 HG-01
Civ. No. 16-00312 HG-KJM

ORDER GRANTING VOLUNTARY DISMISSAL OF PETITIONER’S MOTION UNDER
28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A
PERSON IN FEDERAL CUSTODY (ECF No. 79)
Petitioner Lorin Kushiyama filed a Motion Under 28 U.S.C. §
2255, seeking relief based on the United States Supreme Court’s
decision in Johnson v. United States, 135 S.Ct. 2552 (2015).
Petitioner’s Section 2255 Motion was held in abeyance
pending the United States Supreme Court’s decision in Beckles v.
United States.
Following the decision in Beckles, Petitioner filed a Notice
of Voluntary Dismissal pursuant to Federal Rule of Civil
Procedure 41(a).

The Government filed an Opposition to

Petitioner’s Notice.
Petitioner’s Motion Under 28 U.S.C. § 2255 To Vacate, Set
Aside, Or Correct Sentence is DISMISSED pursuant to Fed. R. Civ.
P. 41(a)(2).
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PROCEDURAL HISTORY
On June 15, 2016, Petitioner filed a MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN
FEDERAL CUSTODY.

(ECF No. 79).

On the same date, Petitioner filed a MOTION FOR A BRIEFING
SCHEDULE.

(ECF No. 80).

On June 17, 2016, the Government filed UNITED STATES’
REQUEST TO EXTEND TIME TO RESPOND TO DEFENDANT’S MOTION UNDER 28
U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE.

(ECF

No. 81).
On July 8, 2016, the Court issued an ORDER RE: HOLDING
MERITS REVIEW ON GUIDELINE AND SECTION 924(c) UNITED STATES v.
JOHNSON CLAIMS IN ABEYANCE PENDING A DECISION IN BECKLES v.
UNITED STATES.

(ECF No. 84).

On April 11, 2017, Petitioner filed DEFENDANT-PETITIONER’S
SUPPLEMENTAL MEMORANDUM, informing the Court that Petitioner’s
Counsel intended to seek dismissal upon receiving consent from
the Petitioner.

(ECF No. 87).

On April 24, 2017, the Government filed UNITED STATES OF
AMERICA’S MEMORANDUM IN OPPOSITION TO DISMISSAL OF THE
DEFENDANT’S § 2255 MOTION PURSUANT TO FED. R. CIV. P. 41(a).
(ECF No. 88).
On May 8, 2017, Petitioner filed a NOTICE OF VOLUNTARY
DISMISSAL PURSUANT TO FED. R. CIV. P. 41(a)(1)(A)(i).
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(ECF No.

89).
On May 17, 2017, the Government filed UNITED STATES OF
AMERICAS’S OPPOSITION TO DEFENDANT’S NOTICE OF VOLUNTARY
DISMISSAL PURSUANT TO R. CIV. P. 41(a)(1)(A)(i) AND REQUEST FOR A
RULING ON THE MERITS.

(ECF No. 90).
ANALYSIS

Petitioner requests voluntary dismissal of his Motion Under
28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A
Person In Federal Custody (ECF No. 79).
Petitioner requests voluntary dismissal pursuant to Federal
Rule of Civil Procedure 41(a).1

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Rule 41(a) provides:

(a)

Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rule
23(e), 23.1(c), 23.2, and 66 and any
applicable federal statute, the plaintiff may
dismiss an action without a court order by
filing:
(i) a notice of dismissal before the
opposing party serves either an answer
or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all
parties who have appeared.
(B) Effect. Unless the notice or stipulation
states otherwise, the dismissal is without
prejudice. But if the plaintiff previously
dismissed any federal- or state-court action
based on or including the same claim, a
notice of dismissal operates as an
adjudication on the merits.
(2) By Court Order; Effect. Except as provided in
Rule 41(a)(1), an action may be dismissed at the
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The Government objects to voluntary dismissal pursuant to
Federal Rule of Civil Procedure 41(a).
First, the Government argues that Rule 41(a) does not apply
to Section 2255 proceedings.
Second, the Government argues that it will suffer prejudice
if voluntary dismissal is granted.

The Government asserts that

it expended many hours on this and other Johnson cases.

The

Government argues that voluntary dismissal may allow the
petitioner to file another habeas petition without complying with
the restrictions applicable to second and successive habeas
petitions set forth in 28 U.S.C. § 2255(h).
The Government requests that the Court issue a ruling on the
merits because Petitioner is unable to succeed on his Motion
following the United States Supreme Court’s decision in Beckles.
I.

Federal Rule of Civil Procedure 41(a) Applies to Section
2255 Proceedings
A federal prisoner may collaterally attack his sentence or

plaintiff’s request only by court order, on terms
that the court considers proper. If a defendant
has pleaded a counterclaim before being served
with the plaintiff’s motion to dismiss, the action
may be dismissed over the defendant’s objection
only if the counterclaim can remain pending for
independent adjudication. Unless the order states
otherwise, a dismissal under this paragraph (2) is
without prejudice.
Fed. R. Civ. P. 41(a).
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conviction by moving the district court to vacate, set aside, or
correct the sentence.

28 U.S.C. § 2255(a).

The procedures for

review of a motion filed pursuant to 28 U.S.C. § 2255 are set
forth in the Rules Governing Section 2255 Proceedings For The
United States District Courts, Pub.L. 94-426, 90 Stat. 1334
(1976); see United States v. Winkles, 795 F.3d 1134, 1145 (9th
Cir. 2015).
Rule 12 of the Rules Governing Section 2255 Proceedings
provides, as follows:
The Federal Rules of Civil Procedure and the Federal
Rules of Criminal Procedures, to the extent that they
are not inconsistent with any statutory provisions or
these rules, may be applied to a proceeding under these
rules.
Petitioner seeks to apply Federal Rule of Civil Procedure
41(a) to his Section 2255 Motion and requests voluntary
dismissal.
The Government argues that Federal Rule of Civil Procedure
41(a) is inapplicable in this case because it is “inconsistent”
with 28 U.S.C. § 2255 and the Rules Governing Section 2255
Proceedings.

The Government’s argument is not persuasive.

The majority of federal district courts that have considered
the issue have agreed that voluntary dismissal is available in
Section 2255 proceedings.

Amaral v. United States, Cr. No. 13-

00391JMS, Order Granting Voluntary Dismissal of Motion Under 28
U.S.C. § 2255, ECF No. 56, (D. Haw. Apr. 28, 2017); Hurdle v.

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United States, 2017 WL 1536228, *5 (E.D. Va. Apr. 27, 2017); see
Volgelmeier v. United States, 2017 WL 2414681, *3 (E.D. Tenn.
June 2, 2017); Valdez v. United States, 2017 WL 2290956, *2 (D.
N.M. Apr. 28, 2017); United States v. Cargill, 2017 WL 1316925,
at *2 (D. Minn. Apr. 7, 2017); Goss v. United States, 2017 WL
1244900, at *1 (E.D. Mich. Apr. 5, 2017).
II.

Dismissal of Petitioner’s Section 2255 Motion Pursuant to
Federal Rule of Civil Procedure 41(a)(1)(A)(i) or 41(a)(2)

Petitioner seeks dismissal pursuant to Federal Rule of Civil
Procedure 41(a)(1)(A)(i) without a Court Order.

Petitioner seeks

dismissal pursuant to 41(a)(1)(A)(i) on the basis that he filed
his Notice of Dismissal before the Government served either an
answer or a motion for summary judgment.
The Government opposes dismissal and argues that it expended
time and effort in opposing Petitioner’s case and other Johnson
cases.

The Government did not file an answer or motion for

summary judgment as to the Section 2255 Motion in this case.
Federal Rule of Civil Procedure 41(a)(2) allows a petitioner
to dismiss an action pursuant to an order of the court.
Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980).

Sams v.
The

decision to grant voluntary dismissal pursuant to Federal Rule of
Civil Procedure 41(a)(2) rests within the sound discretion of the
District Court.

Stevedoring Servs. of Am. v. Armilla Int’l B.V.,

889 F.2d 919, 921 (9th Cir. 1989).
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The Ninth Circuit Court of Appeals has instructed that a
“district court should grant a motion for voluntary dismissal
under Rule 41(a)(2) unless a defendant can show that it will
suffer some plain legal prejudice as a result.”
Lenches, 263 F.3d 972, 975 (9th Cir. 2001).

Smith v.

Legal prejudice

means prejudice to some legal interest, some legal claim, or some
legal argument.

Westlands Water Dist. v. United States, 100 F.3d

94, 97 (9th Cir. 1996).
Uncertainty because some of the claims remain unresolved is
not legal prejudice.

Id.

The possibility of another lawsuit is

not legal prejudice.

Hamilton v. Firestone Tire & Rubber Co.,

Inc., 679 F.2d 143, 145 (9th Cir. 1982).
Here, the Government has not demonstrated that it will
suffer legal prejudice if voluntary dismissal is granted.
Dismissal will not deprive the Government of any legal interest,
argument, or claim.

Westlands Water Dist., 100 F.3d at 97.

There was not an answer or a motion filed against the
Petitioner’s Section 2255 Motion by the Government.

Their

objection based on an overall effort on the issues raised by
Johnson is not sufficient to find prejudice here.

See Williams

v. Peralta Comm. College Dist., 227 F.R.D. 538, 539 (N.D. Cal.
2005) (citing Westlands Water Dist., 100 F.3d at 97).
The question of whether voluntary dismissal would provide
the Petitioner with a tactical advantage in avoiding application

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of Section 2255(h) to any further habeas petition is not before
the Court.

Plain legal prejudice does not result when the

defendant faces the prospect of a second lawsuit or when
plaintiff merely gains some tactical advantage.

Hamilton, 679

F.2d at 145; Smith, 263 F.3d at 976; Valdez, 2017 WL 2290956, at
*2.
Dismissal will neither prejudice the Government nor cause
judicial waste.

The request for dismissal was timely.

The Court

finds that dismissal pursuant to Fed. R. Civ. P. 41(a)(2) is
appropriate.
CONCLUSION
Petitioner’s Motion Under 28 U.S.C. § 2255 To Vacate, Set
Aside, or Correct Sentence (ECF No. 79) is DISMISSED pursuant to
Fed. R. Civ. P. 41(a)(2).
The Clerk of Court is DIRECTED to CLOSE Civil No. 1600312HG-KJM.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, July 5, 2017.

Lorin Kushiyama v. United States of America, Criminal No. 1000339 HG-01, Civil No. 16-00312 HG-KJM; ORDER GRANTING VOLUNTARY
DISMISSAL OF PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY (ECF No. 79)
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