United States District Court, D. Montana, Billings Division
P. Watters United States District Court.
matter is before the Court on Defendant/Movant Savage's
motion to vacate, set aside, or correct the sentence under 28
U.S.C. § 2255.
motions to dismiss are pending. One was filed by the United
States. The second was filed two weeks later by Defendant
United States has filed more than one answer (Docs. 78, 86).
Although it filed a motion to dismiss, in substance, it seeks
a ruling on the merits. See U.S. Mot. to Dismiss
(Doc. 92) at 2. Savage asks the Court to dismiss his motion
"with prejudice" as he "no longer seeks relief
through 28 U.S.C. § 2255." Def. Mot. to Dismiss
(Doc. 94) at 1.
answer has been filed, an action may be dismissed without a
decision on the merits only if one of two conditions is met.
First, all parties who have appeared may stipulate to
dismissal. Fed.R.Civ.P. 41(a)(1)(A)(ii). The United States
has not agreed to a stipulated dismissal.
the Court may dismiss the action "on terms that the
court considers proper." Fed.R.Civ.P. 41(a)(2). Under
the civil rules, dismissing the action with prejudice would
certainly preclude Savage from raising the same claims again.
It is not clear that a dismissal with prejudice would
preclude him from proceeding with another § 2255 motion
raising a different claim in the future, based on newly
discovered evidence or new law.
the Rules of Civil Procedure apply, this action is not an
ordinary civil action. The rules apply to the extent they are
not inconsistent with 28 U.S.C. § 2255 and its
accompanying rules. See Gonzalez v, Crosby,
545 U.S. 524, 529 (2005). To allow a § 2255 movant to
withdraw his motion when it appears the law does not support
his argument would frustrate Congress' intent in imposing
restrictions on second or successive motions. See 28
U.S.C. § 2255(h). This matter has been litigated for
nearly three years. Dismissal under these circumstances would
risk "impermissibly circumvent[ing] the requirement that
a successive habeas petition be precertified by the court of
appeals as falling within an exception to the
successive-petition bar." Gonzalez, 545 U.S. at
532; see also United States v. Buenrostro, 638 F.3d
720, 722 (9th Cir. 2011) (per curiam).
these reasons, dismissal with prejudice under Fed.R.Civ.P.
41(a)(2) is not appropriate. The United States is entitled to
a decision on the merits of the § 2255 motion.
sole claim is that his career offender designation under
U.S.S.G. § 4B1.1 and his base offense level under
U.S.S.G. § 2K2.1(a) were unlawful in light of
Johnson v. United States, ___ U.S.___, 135 S.Ct.
2551 (2015), Descamps, and Moncrieffe v. Holder,
___U.S.___, 133 S.Ct. 1678 (2013). See Am.
§ 2255 Mot. (Doc. 83) at 2 ¶ 4.
applies retroactively to cases on collateral review only if
the case announced a new rule. Teague v. Lane, 489
U.S. 288, 310 (1989). Descamps and
Moncrieffe do not provide Savage any relief because
neither announced a new rule. Ezell v. United
States, 778 F.3d 762, 765-66 (9th Cir. 2015). Therefore,
to the extent Savage asserts a claim based on
Descamps and Moncrieffe, his § 2255
motion is untimely. See 28 U.S.C. § 2255(f)(1),
(3); Am. § 2255 Mot. at 33-34; Answer (Doc. 78) at
announced a new rule that is retroactive to cases on
collateral review. See Welch v. United States, ___
U.S. ___, 136 S.Ct. 1257 (2016). But the Supreme Court has
now held that provisions of the advisory sentencing
guidelines are not subject to constitutional challenge on
grounds of vagueness. See Beckles v. United States,
___ U.S. ___, 137 S.Ct. 886, 890 (2017). Savage was
sentenced on July 7, 2005, after the guidelines became
advisory. See Minutes (Doc. 28); see also United
States v. Booker, 543 U.S. 220, 245 (U.S. Jan. 12,
2005). Therefore, he is not entitled to relief under §
certificate of appealability is not warranted. Savage has not
made a substantial showing that he was deprived of a
constitutional right. See 28 U.S.C. §
IT IS HEREBY ORDERED:
Savage's motion to dismiss with prejudice ...