United States District Court, S.D. New York
DECISION AND ORDER
RICHARD M. BERMAN, U.S.D.J.
21, 2016, Tyquez Harrell (“Petitioner” or
“Harrell”) filed a petition pursuant to 28 U.S.C.
§ 2255 (“Petition”) to vacate his September
3, 2014 sentence under 18 U.S.C. § 924(c).
2, 2014, Harrell pleaded guilty to one count of Hobbs Act
robbery in violation of 18 U.S.C. § 1951, and to one
count of brandishing, using, and carrying a firearm during
and in relation to a crime of violence (i.e., Hobbs
Act robbery), in violation of 18 U.S.C. §
924(c)(1)(A)(ii). See Plea Tr., dated May 2, 2014;
Judgment of Conviction, dated Sept. 3, 2014. The Court
sentenced Harrell to 125 months of incarceration,
i.e., 84 months for the § 924(c) conviction,
plus 41 months consecutive for the Hobbs Act robbery,
followed by five years of supervised release. See
Judgement of Conviction, dated Sept. 3, 2014. As part of his
plea agreement, Harrell waived his right to file a habeas
challenge under 28 U.S.C. § 2255. See Plea Tr.,
dated May 14, 2014, at 2 (The Court: “[In your plea]
agreement, you waived your right to... bring a so-called
habeas challenge under 28, United States Code, Section
2255…Do you understand your appeal rights? The
Defendant: Yes, sir.”). Sent. Tr. at 26.
challenges his conviction under 18 U.S.C. § 924(c),
contending that “Hobbs Act robbery . . . is not a
‘crime of violence' as [the two clauses of] 18
U.S.C. § 924(c)(3) define that term.”
Petitioner's Mem. of Law, dated Jan. 7, 2019
(“Pet.'s Mem.”) at 1. Specifically, Harrell
argues that: (1) Hobbs Act robbery
“lacks the requisite ‘violent force'”
to satisfy the force clause at §924(c)(3)(A); and
(2) the residual clause at §
924(c)(3)(B) is unconstitutional because it “is void
for vagueness[.]” Id. at 4, 6.
January 30, 2019, the Government opposed Harell's
Petition for habeas relief. The Government argues that
(1) “[t]his case . . . [is] controlled
by the Second Circuit's decision in United States v.
Hill, 890 F.3d 51 (2d Cir. 2019) . . . [which] held that
substantive Hobbs Act robbery [as opposed to conspiracy to
commit Hobbs Act robbery] categorically qualifies as a
‘crime of violence' . . . under [the] ‘force
clause[.]'” Gov't Letter, dated Oct. 17, 2019.
The Government also argues that (2)
“[b]ecause Harrell pleaded guilty pursuant to a plea
agreement containing an express waiver of the right to
collaterally attack his conviction and sentence, he is
precluded from asserting through Section 2255 any claim
falling short of an attack upon the constitutionality of the
statute of conviction …and is arguably precluded from
asserting even a claim of the latter type[.]” Gov't
Mem. of Law, dated Jan. 30, 2019 (“Gov't
Mem.”) at 2-3.
Petition was never reviewed by the Court. Rather, on February
7, 2019, Harrell filed a motion to dismiss on his § 2255
petition “without prejudice” pursuant to Rule
41(a)(2) of the Federal Rules of Civil Procedure. Mot. to
Dismiss Under Fed.R.Civ.P. 41(a)(2), dated Feb. 7, 2019
(“Mot. To Dismiss”). He states that he had
previously “sought to stay [the case] pending appellate
developments, and . . . now seeks to dismiss before the
expenditure of significant judicial attention.” Mot. to
Dismiss at 1. Harrell argues that his motion to dismiss
without prejudice should be granted because of
“evolving law” pertaining to whether Hobbs Act
robbery is a crime of violence. Petitioner's Letter,
dated Feb. 15, 2019. Harrell also argues that dismissal
without prejudice is necessary to avoid “the stringent
restraints that 28 U.S.C. §2255 [would] impose on [any
future] second or successive motion[.]” Mot. to Dismiss
Government opposes Harrell's February 7, 2019 motion to
dismiss, arguing that it is impermissibly “based on . .
. [Harrell's] recognition that his [underlying habeas]
motion will be denied on the merits.” Gov't Letter,
dated Feb. 11, 2019. The Government also argues that
dismissal without prejudice “would potentially
circumvent the procedures limiting the filing of second or
successive” § 2255 motions. Id.
the reasons set forth below, the Motion to Dismiss Without
Prejudice is granted.
relief under 28 U.S.C. § 2255 is available “only
for a constitutional error, a lack of jurisdiction in the
sentencing court, or an error of law or fact that constitutes
‘a fundamental defect which inherently results in a
complete miscarriage of justice.'” United
States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting
Hill v. United States, 368 U.S. 424, 428 (1962)).
The Zagano Factors Support Dismissal Without
Rule of Civil Procedure 41(a)(2) provides that “an
action may be dismissed at the plaintiff's request only
by court order, on terms that the court considers
proper.” Fed.R.Civ.P. 41(a)(2). Voluntary dismissal
without prejudice under Rule 41(a)(2) lies within the
discretion of the court. Catanzano v. Wing, 277 F.3d
99, 109 (2d Cir. 2001). Courts in the Second Circuit follow a
“presumption” that a court should grant dismissal
without prejudice “absent a showing that [the]
defendant will suffer substantial prejudice as a
result.” Benitez v. Hitachi Metals Am., Ltd.,
No. 12-2237 ...