Opinion
Criminal Case No. 06-cr-00195-DME Civil Case No. 17-cv-01970-DME
09-20-2017
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. 2. ANTHONY WRIGHT, a/k/a T, a/k/a Rose, Defendant/Movant.
ORDER
This matter is before the Court on the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 460) filed pro se by Defendant/Movant Anthony Wright on August 14, 2017.
Mr. Wright was convicted of one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 371, and five counts of bank fraud and aiding and abetting, in violation of 18 U.S.C. § 1344 and 2. (Doc. 204). He was sentenced to 70 months in the custody of the United States Bureau of Prisons. (Id. at 3). The judgment of conviction was entered on March 21, 2017. (Id.). The Tenth Circuit Court of Appeals affirmed on direct appeal. (Doc. 281). The Court subsequently revoked Mr. Wright's supervised release and sentenced him to twelve months in prison. (Doc. 435). The judgment for revocation of supervised release was entered on May 18, 2017. (Id.).
The same day, Mr. Wright filed pro se a Motion to Correct Sentence Under Rule 35(A) (Doc. 436). On May 30, 2017, Mr. Wright filed pro se a Motion to Amend Motion to Correct Sentence Under Rule 35(A) (Doc. 437) and a Motion to Construe Motion to Correct Sentence Under Rule 35(A) and 18 U.S.C. § 3742(A)(1)(2) and (3) as a Motion Under 28 U.S.C. Section 2255 (Doc. 438). Mr. Wright also filed a notice of appeal on June 1, 2017. (See Doc. 440). The appeal remains pending.
On August 7, 2017, the Court ordered Mr. Wright's newly-appointed CJA counsel to review Mr. Wright's three pending pro se motions and either adopt them, file an Anders brief, or take some intermediate position on the arguments raised by Mr. Wright in those motions. (Doc. 455).
On August 14, 2017, Mr. Wright filed pro se a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 460). He challenges the judgment for revocation of supervised release.
In response to the Court's August 7 order, Mr. Wright filed, through counsel, Motions Regarding Anthony Wright's Pending Pro Se Motions (Doc. 463) on September 13, 2017. In the motion, Mr. Wright asks to withdraw and dismiss the pro se § 2255 motion without prejudice to file it at a later time. (Id. at 8).
The Court may allow voluntary dismissal of a § 2255 motion "on terms the court considers proper." Fed. R. Civ. P. 41(a)(2). "Dismissal under Rule 41(a)(2) is within the sound discretion of the court." Clark v. Tansy 13 F.3d 1407, 1411 (10th Cir. 1993). In determining whether to grant a voluntary dismissal in this matter, the Court "should endeavor to insure substantial justice is accorded to both parties." Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997). Therefore, this Court must "consider the equities not only facing the [government], but also those facing [Mr. Wright]." Id. Where a movant requests to withdraw a § 2255 Motion due to, for example, curable procedural or technical defects, a voluntary dismissal would be similar to a dismissal without prejudice. See Thai v. U.S., 391 F.3d 491, 495 (2nd Cir. 2004).
Under the circumstances set forth above, the Court grants Mr. Wright's request to withdraw and dismiss the § 2255 motion without prejudice. Accordingly, it is
ORDERED that the Motions Regarding Anthony Wright's Pending Pro Se Motions (Doc. 463) is GRANTED IN PART to the extent Defendant seeks to withdraw the pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 460) filed on August 14, 2017. The Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 460) is denied without prejudice and Civil Case No. 17-cv-01970-DME is closed. It is
FURTHER ORDERED that the Motion to Construe Motion to Correct Sentence Under Rule 35(A) and 18 U.S.C. § 3742(A)(1)(2) and (3) as a Motion Under 28 U.S.C. Section 2255 (Doc. 438) filed on May 30, 2017 is DENIED AS MOOT.
DATED September 20, 2017, at Denver, Colorado.
BY THE COURT:
s/ David M . Ebel
David M. Ebel
U.S. Circuit Court Judge
District of Colorado