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United States v. Raymond

United States District Court, D. Montana, Billings Division

September 28, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
BROGAN YARDLEY RAYMOND, Defendant/Movant.

          ORDER DISMISSING § 2255 MOTION AND GRANTING CERTIFICATE OF APPEALABILITY

          SUSAN P. WATTERS JUDGE.

         This case comes before the Court on Defendant/Movant Raymond's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Raymond is a federal prisoner proceeding pro se.

         I. Background

         The present motion is the second Raymond has filed in this Court under § 2255. On June 24, 2016, Raymond-represented by counsel-filed a motion under 28 U.S.C. § 2255, alleging a right to relief under Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015). The motion challenged his base offense level under U.S.S.G. § 2K2.1(a)(2). Its application depended on characterizing one or two of his prior convictions as a "crime of violence," and the guidelines defined that phrase in terms identical to those the Supreme Court held unconstitutionally vague in Johnson.

         On June 27, 2016, the Court ordered the United States to file an answer. On the same day, the Supreme Court granted certiorari in Beckles v. United States, No. 15-8544 (U.S. pet. for cert, filed Mar. 9, 2016). On June 30, 2016, the Court stayed the proceedings pending a decision in Beckles. See Text Order (June 30, 2016).

         On March 6, 2017, the Supreme Court decided that the advisory sentencing guidelines are not subject to due process challenges for vagueness. See Beckles, U.S.__, 137 S.Ct. 886, 890 (2017).

         On March 14, 2017, Raymond moved the Court to defer ruling on his § 2255 motion. The Court denied the motion to defer ruling. See Mot. to Defer (Doc. 34); Order (Doc. 35).

         On March 27, 2017, Raymond voluntarily dismissed his § 2255 motion. See Notice (Doc. 36); Order (Doc. 37).

         II. Second or Successive Motion

         Nearly a year after he dismissed his first § 2255 motion, Raymond filed the present one. He now challenges the voluntariness of his guilty plea and the application of the sentencing guidelines. He also asserts an equal protection violation because "once the Johnson Law was passed my case was never reviewed by a judge." See Mot. § 2255 (Doc. 38) at 4-5.

         Not every § 2255 motion filed after denial or dismissal of a previous § 2255 motion is a prohibited "second or successive" motion. Voluntary or even involuntary dismissal of a first § 2255 motion will not block the filing of a second motion if, for instance, the first motion is dismissed because direct appeal is still pending. See, e.g., United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). As another example, a defendant may withdraw a document that is in substance a § 2255 motion if, once advised of the true nature of his motion, he chooses not to proceed at that time. See, e.g., Castro v. United States, 540 U.S. 375, 377 (2003).

         But Raymond's dismissal of his first § 2255 motion has only one "tenable interpretation." See Felder v. McVicar, 113 F.3d 696, 698 (7th Cir. 1997). He read the writing on the wall. The Supreme Court's ruling in Beckles meant that a Johnson claim lacked merit, and Raymond made no other claim. In these circumstances, voluntary dismissal was "an admission of defeat." Felder, 113 F.3d at 698; see also Thai v. United States, 391 F.3d 491, 494-96 (2d Cir. 2004) (per curiam) ("[T]he reasons for which a petitioner withdraws a § 2255 petition should govern the analysis of whether that petition counts for successive purposes, at least where the reasons for withdrawal are reasonably discernible."); In re Moore, 735 Fed.Appx. 883, 885-86 (6th Cir. 2018); Provenzale v. United States, 388 Fed.Appx. 285, 287 (4th Cir. 2010).

         In actions under § 2255, the Federal Rules of Civil Procedure apply "to the extent that they are not inconsistent with any statutory provisions." Rule 12, Rules Governing § 2255 Proceedings; see also, e.g., Gonzalez v. Crosby, 545 U.S. 524, 530-35 (2005) (recognizing that Rule 60(b) "has an unquestionably valid role to play in habeas cases," but not when a motion under the rule "is in substance a successive habeas petition5'); Mayle v. Felix, 545 U.S. 644, 662-63 (2005) (reasoning that the phrase "conduct, transaction, or occurrence" in the relation-back rule, Fed.R.Civ.P. 15(c)(1)(B), cannot mean "the same trial, conviction, or sentence," because that interpretation would frustrate limitations periods under 28 U.S.C. §§ 2244(d)(1) and 2255(f)).

         Under § 2255, the criminal defendant is the moving party who initiates a collateral action challenging the validity of a criminal conviction or judgment. The rule that authorized Raymond to dismiss his action before the United States responded or the Court ruled on the merits was Federal Rule of Civil Procedure 41(a)(1)(A)(i).[1] As with Rule 60(b) in Gonzalez and Rule 15(c) in Felix, the rule's application must be informed by Congress's intent in enacting stringent limitations on second or successive motions. It would be inconsistent with 28 U.S.C. § 2255(h) to allow a defendant who sought relief under Johnson to evade the limitations on second or successive motions merely because he voluntarily dismissed the collateral action when ...


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