Summary
granting voluntary dismissal of § 2255 motion under Rule 41
Summary of this case from Meyer v. United StatesOpinion
No. 2:15-cr-00205-TLN-EFB
10-26-2020
MATTHEW MULLER, Movant, v. UNITED STATES OF AMERICA, Respondent.
ORDER
Matthew Muller is a federal prisoner proceeding without counsel in this motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. On August 10, 2020, Muller filed a request to withdraw the motion. (ECF No. 160.) Respondent has not filed a response.
Muller's request is, in essence, a request to voluntarily dismiss his petition for relief from his federal conviction. See United States v. Donahue, No. 3:14-cr-00024-MMD-WGC, 2017 U.S. Dist. LEXIS 80507 (D. Nev. May 25, 2017). Under Rule 12 of the Rules Governing § 2255 Proceedings in the United States District Courts, the Court applies the Federal Rules of Civil Procedure to this action, to the extent it is not inconsistent with the § 2255 rules or any statutory provision. Rule 41 of the Federal Rules of Civil Procedure provides that the plaintiff may seek to voluntarily dismiss his case with the court's permission after the defendant has answered or filed a motion for summary judgment. Here, Respondent has filed an opposition to the motion to vacate, which is akin to an answer. (ECF No. 113.) Thus, Muller's request to dismiss the case must be approved by the Court under Rule 41(a)(2).
Dismissal under Rule 41(a)(2) should be granted "unless a defendant can show that it will suffer some plain legal prejudice as a result." Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001) (citing Waller v. Fin. Corp. of Am., 828 F.2d 579, 583 (9th Cir. 1987)). Legal prejudice means "prejudice to some legal interest, some legal claim, [or] some legal argument." Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996). Respondent has not raised any objection to the dismissal of Muller's § 2255 motion. Accordingly, the Court will grant the motion.
For the foregoing reasons, Muller's August 10, 2020 motion for voluntary dismissal of his § 2255 motion (ECF No. 160) is hereby GRANTED, and that motion is dismissed without prejudice. The Clerk of Court is directed to terminate all pending motions in this action and close the companion civil case, No. 2:18-cv-00879-TLN-EFB.
IT IS SO ORDERED. DATED: October 26, 2020
/s/_________
Troy L. Nunley
United States District Judge