United States District Court, D. Montana, Billings Division
ORDER DISMISSING § 2255 MOTION AND GRANTING
CERTIFICATE OF APPEALABILITY
P. WATTERS JUDGE.
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.
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
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).
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).
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.
March 27, 2017, Raymond voluntarily dismissed his § 2255
motion. See Notice (Doc. 36); Order (Doc. 37).
Second or Successive Motion
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.
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).
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).
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)).
§ 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). 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 ...