Opinion
Case No. 07-cr-20344
03-20-2017
DEREK PHOENIX, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Magistrate Judge Patricia T. Morris ORDER DISMISSING PETITIONER'S MOTION TO VACATE SENTENCE PURSUANT TO PETITIONER'S REQUEST , AND CLOSING CIVIL ACTION
On September 14, 2015, Petitioner Derek Phoenix filed a motion to vacate his sentence under 28 U.S.C. § 2255. See ECF No. 39. He argues that pursuant to the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015) (striking down the residual clause of the Armed Career Criminal Act as unconstitutionally vague), his sentence under the residual clause of the career offender provision of the United States Sentencing Guidelines must be vacated. Because Phoenix's petition was second or successive within the meaning of 28 U.S.C. § 2255(h), it was transferred to the Sixth Circuit. See ECF No. 53.
On January 19, 2017 the Sixth circuit issued an order authorizing Petitioner to proceed with his second or successive motion. See ECF No. 54. The Sixth Circuit further instructed this Court to hold Petitioner's case in abeyance pending the outcome of Beckles v. United States, 136 S.Ct. 2510 (2016), but also noted that this Court was free "to consider terminating the stay under appropriate circumstances, either on motion or sua sponte." Id. The Petition was therefore reinstated and held in abeyance. See ECF No. 56.
On March 6, 2017 the Supreme Court reached a decision in Beckles, holding that the sentencing guidelines are not subject to void for vagueness challenges under the Fifth Amendment Due Process clause. See Beckles v. United States, No. 15-8544, 2017 WL 855781, at *3 (U.S. Mar. 6, 2017). In response to that opinion, Petitioner Phoenix has moved to withdraw his § 2255 motion through a handwritten and signed request. See ECF No. 57. Because Phoenix has knowingly and voluntarily chosen to withdraw his petition, the petition will be dismissed.
It is ORDERED that Petitioner Phoenix's motion to vacate sentence under 28 U.S.C. § 2255, ECF No. 39, is DISMISSED.
It is further ORDERED that the corresponding civil action, Phoenix v. United States, 17-cv-10178 (E.D. Mich. Jan. 19, 2017), is CLOSED. Dated: March 20, 2017
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on March 20, 2017.
s/Kelly Winslow for
MICHAEL A. SIAN, Case Manager