Clevenger v. USA

Filing 13

ORDER. IT IS ORDERED THAT: Petitioner Jacob Clevenger has WITHDRAWN his § 2255 motion and no further ruling by this Court is required or permitted. The Government's Motion to Stay 5 and Motion to Dismiss 10 are therefore DEEMED MOOT. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JACOB JAMES CLEVENGER
Case No. 1:16-cv-00246-BLW
Petitioner,
ORDER
v.
UNITED STATES OF AMERICA,
Respondent.

INTRODUCTION
On March 22, 2017, the Petitioner filed a Notice of Voluntary Dismissal of his
Pending Motion under 28 U.S.C. § 2255 (Dkt. 9). The next day, the government filed a
Motion to Deny the § 2255 Motion (Dkt. 10). For the reasons explained below, the Court
will dismiss the petition without prejudice, in accordance with the notice of voluntary
dismissal.
BACKGROUND
In October 2012, Jacob Clevenger pleaded guilty to conspiracy to possession with
intent to distribute methamphetamine. The Court sentenced Clevenger to 188 months’
imprisonment after finding that he qualified for a career-offender status under § 4B1.2 of
the United States Sentencing Guidelines.

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In June 2016, Clevenger filed a § 2255 motion. He argued that, in light of the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2251 (2015), § 4B1.2
was void for vagueness. Clevenger argued that he should therefore be resentenced
without the career-offender enhancement. In Beckles v. United States, 132 S. Ct. 886,
892 (2017), however, the Supreme Court held that “the Guidelines are not subject to a
vagueness challenge under the Due Process Clause. The residual clause in § 4B1.2(a)(2)
therefore is not void for vagueness.” Shortly after Beckles was handed down, Clevenger
filed his Notice of Voluntary Dismissal.
ANALYSIS
Clevenger’s Notice of Voluntary Dismissal relies upon Rule 41(a)(1)(A)(i) of the
Federal Rules of Civil Procedure. This rule states that “the plaintiff may dismiss an action
without a court order by filing … a notice of dismissal before the opposing party serves
either an answer or a motion for summary judgment. Fed. R. Civ. P. 41(a)(1)(A)(i)
(emphasis added).
The government argues that Rule 41 does not apply in § 2255 proceedings because
it is inconsistent with 28 U.S.C. § 2255(f)(3). But there is no inconsistency between Rule
41 and § 2255(f)(3). Section 2255(f)(3) does not specify a procedural mechanism for
voluntarily dismissing a § 2255 petition; it simply provides a one-year statute of
limitations for § 2255 petitions. See 28 U.S.C. § 2255(f)(3) (“A 1-year period of
limitation shall apply to a motion under this section.”). In fact, none of the rules
governing § 2255 proceedings tell a petitioner how to voluntarily dismiss a petition. Rule
12 steps into the breach in that situation; it allows district courts to apply “[t]he Federal
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Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory
provisions or these rules.” Rule 41 thus governs Clevenger’s Notice of Dismissal.
The Government also asks the Court to rule on the merits – notwithstanding the
voluntary dismissal. The Court is not persuaded.
The Government “could have obviated this situation by filing an answer,” but
elected to wait until after Petitioner filed a notice of dismissal. See Swedberg v. Marotzke,
339 F.3d 1139, 1145 (9th Cir. 2003); see also Dkt. 4 (docket entry order granting
extension of time to answer). The Ninth Circuit has explained that:
The language of this rule leaves little room for interpretation. Until an
adverse party files an answer or a motion for summary judgment, the
plaintiff can have the action dismissed merely by filing a notice of
dismissal with the clerk. Rule 41(a)(1)(i) does not require leave of court to
dismiss the action.
Hamilton v. Shearson-Lehman Am. Exp., Inc., 813 F.2d 1532, 1534 (9th Cir. 1987).
Under these circumstances, the Court will not rule on the merits of the petition. 1
ORDER
IT IS ORDERED THAT:
(1) Petitioner Jacob Clevenger has WITHDRAWN his § 2255 motion and no
further ruling by this Court is required or permitted.

1

In so ruling, the Court makes no determination at this time as to whether any future § 2255 petition
Clevenger may file would be a second or successive petition.

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(2) The Government’s Motion to Stay (Dkt. 5) and Motion to Dismiss (Dkt. 10)
are therefore DEEMED MOOT.

DATED: March 16, 2018

_________________________
B. Lynn Winmill
Chief U.S. District Court Judge

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