Donahue, IV v. USA

Filing 1

ORDER - Petitioner's motion to notice voluntary dismiss of his motion to vacate (ECF No.69) is granted. Petitioner's motion to vacate (ECF Nos. 59, 60) is deemed voluntarilydismissed. The government's motion to lift stay (ECF No. 66) is denied as moot. Signed by Judge Miranda M. Du on 5/25/2017. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 UNITED STATES OF AMERICA, 10 Case No. 3:14-cr-00024-MMD-WGC Plaintiff, ORDER v. 11 JOHN JOSEPH DONAHUE, IV, 12 Defendants. 13 14 Petitioner John Joseph Donahue filed a motion “(Motion”) under 28 U.S.C. § 2255 15 seeking to vacate his sentence and for his case to be set for de novo sentencing based 16 on the application of Johnson v. United States, 135 S.Ct. 2551 (2015), in which the 17 Supreme Court invalidated the residual clause in the Armed Career Criminal Act of 1984 18 (ACC”). (ECF Nos. 59, 60.) Against Donahue’s objection, the Court granted the 19 government’s motion to stay the briefing schedule on Donohue’s Motion pending the 20 Supreme Court’s decision in Beckles v. United States, 137 S.Ct. 886 (2017). (ECF No. 21 65.) Before the Court is the government’s motion to lift stay. (ECF No. 66.) Donohue has 22 filed a motion to notice voluntary dismissal of his Motion (“Dismissal Motion”). (ECF No. 23 69.) The government opposes, asking the Court to reject Donohue’s Dismissal Motion 24 and to instead deny the Motion. (ECF No. 70.) Donohue has replied. (ECF No. 71.) 25 The government argues that the Court should resolve the Motion on its merits and 26 deny the Motion as barred by Beckles and Donohue’s waiver of the collateral attack 27 provision of his plea agreement. However, the Court is not convinced that the Motion 28 should be addressed on the merits under the unique circumstances presented by 1 Johnson’s profound impact. In the context of this case, the Federal Rules of Civil 2 Procedure may be applied because “they are not inconsistent with any statutory 3 provisions or these rules [governing section 2255 proceedings].” Rules Governing Section 4 2255 Proceedings R. 12. The Court will therefore permit Donohue to voluntarily dismiss 5 his Motion. 6 Petitioner’s motion to notice voluntary dismiss of his motion to vacate (ECF No. 7 69) is granted. Petition’s motion to vacate (ECF Nos. 59, 60) is deemed voluntarily 8 dismissed. The government’s motion to life stay (ECF No. 66) is denied as moot. 9 10 DATED THIS 25th day of May 2017. 11 12 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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