Rodriguez v. United States of America
ORDER by District Judge Judith C. Herrera granting 11 Petitioner's Motion to Dismiss Without Prejudice (baw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
No. CV 16‐00603 JCH/GBW
No. CR 11‐02867 JCH
JOEL REYNALDO RODRIGUEZ,
ORDER GRANTING PETITIONER’S MOTION
TO DISMISS WITHOUT PREJUDICE
This matter comes before the Court on Petitioner’s Motion to Dismiss Without
Prejudice. Doc. 11. Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255 (and Johnson v. United States) on June 17, 2016, and filed an
amended version of the Motion on June 27, 2016. Docs. 1, 3. Petitioner’s § 2255 petition
challenges his enhanced sentence under the United States Sentencing Guidelines career
offender enhancement on the basis that the residual clause of that provision of the
guidelines is unconstitutionally vague under the reasoning in Johnson v. United States,
576 U.S. ___, 135 S. Ct. 2551 (2015). See doc. 3 at 6‐9.
The United States filed its Response to the § 2255 petition on February 10, 2017.
Doc. 8. Before the Magistrate Judge could issue his Proposed Findings and
Recommended Disposition regarding the merits of the petition, the Supreme Court
issued its decision in Beckles v. United States, 580 U.S. ___, No. 15‐8544, slip op. (March 6,
2017). In Beckles, the Supreme Court held that the guidelines are not subject to a void‐
for‐vagueness challenge. 580 U.S. ___, No. 15‐8544, slip op. at 5. Accordingly, the
Magistrate Judge ordered that the parties confer and file a joint statement in light of the
impact of Beckles on the merits of the petition. Doc. 9. The parties conferred and agreed
that Petitioner’s § 2255 motion was due to be dismissed. Doc. 10. Petitioner then filed
the instant Motion to Dismiss Without Prejudice on March 22, 2017, which indicated
that the United States opposes based on its position that the petition should be
dismissed with prejudice. See doc. 11. The United States did not file a response
articulating grounds to support its position, however. Having reviewed Petitioner’s
Motion and being fully advised, the Court finds the Motion to be well‐taken and will
Rule 41 permits dismissal of an action “on terms that the court considers
proper.” FED. R. CIV. P. 41(a)(2). Absent legal prejudice to the respondent, the Court
should typically grant a voluntary dismissal. Ohlander v. Larson, 114 F.3d 1531, 1537
(10th Cir. 1997). Prejudice “does not arise simply because a second action . . . may be
filed against the [respondent][.]” Brown v. Baeke, 413 F.3d 1121, 1124 (10th Cir. 2005).
Rather, in determining whether legal prejudice to Respondent would be caused by
granting Petitioner’s motion, the Court should consider factors including “the opposing
party’s effort and expense in preparing for trial; excessive delay and lack of diligence on
the part of the movant; insufficient explanation of the need for a dismissal; and the
present stage of litigation[,]” although this list of factors is not exhaustive. Ohlander, 114
F.3d at 1537. In determining whether prejudice will result from granting a voluntary
dismissal, the Court “should endeavor to [ensure] substantial justice is accorded to both
parties. . . . [and] therefore must consider the equities not only facing the [respondent],
but also those facing the [petitioner][.]” Id.
Petitioner filed this habeas action under 28 U.S.C. § 2255. See docs. 1, 3. Therefore,
the first Ohlander factor—Respondent’s effort and expense in preparing for trial—does
not apply to the present action. The Court acknowledges the effort and expense of the
United States related to briefing Petitioner’s § 2255 motion. Doc. 8. However, unlike the
circumstances of a typical civil lawsuit, a subsequent filing of a similar action by
Petitioner would not expose Respondent to damages or liability. See 28 U.S.C.A. § 2255.
A § 2255 motion instead allows a criminal defendant to seek relief from an allegedly
illegal or unconstitutional sentence, such that the “equities” facing Petitioner if the
Court were to dismiss his action with prejudice are significant. See id. § 2255(h); see also
Ohlander, 114 F.3d at 1537.
Here, the Magistrate Judge did not file any Proposed Findings and
Recommended Disposition prior to Petitioner filing his Motion to Dismiss. Therefore,
the situation before the Court is not one where Petitioner has merely read the “clear
writing on the wall in the form of the magistrate’s report” and conceded defeat based
on the contents therein. See Hurd v. Mondragon, 851 F.2d 324, 328‐29 (10th Cir. 1988); see
also Haro‐Arteaga v. United States, 199 F.3d 1195, 1197 (1999) (finding that a § 2255
motion filed after two earlier motions had been voluntarily dismissed would not be
barred because “‘in order for a habeas petition to be considered successive, the previous
motion must have been denied on the merits. The district court must have engaged in
substantive review.’” (quoting with approval Garrett v. United States, 178 F.3d 940, 942
(7th Cir. 1999))). Moreover, Respondent has offered no basis for a finding that prejudice
to Respondent would result from granting Petitioner’s motion. Absent such a showing,
dismissal without prejudice is appropriate. See Brown, 413 F.3d at 1123‐24.
Therefore, Petitioner’s Amended Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255 (doc. 3) is hereby DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
JUDITH C. HERRERA
United States District Judge
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?