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United States v. Harrell

United States District Court, S.D. New York

January 14, 2020

UNITED STATES OF AMERICA, Respondent,
v.
TYQUEZ HARRELL, Petitioner.

          DECISION AND ORDER

          RICHARD M. BERMAN, U.S.D.J.

         I. Background

         On June 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).

         On May 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.

         Petitioner 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.

         On 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.

         Harrel's 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 at 1.

         The 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.

         For the reasons set forth below, the Motion to Dismiss Without Prejudice is granted.[1]

         II. Legal Standard

         Collateral 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)).

         III. Analysis

         (1) The Zagano Factors Support Dismissal Without Prejudice

         Federal 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.”[2] 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 ...


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