Opinion
Case No. 18-10064-JWB
10-29-2020
UNITED STATES OF AMERICA, Plaintiff, v. JUAN CARLOS CARMONA, Defendant.
MEMORANDUM AND ORDER
This matter is before the court on Defendant's "Motion to Dismiss Complaint/Filing." (Doc. 131.) In the motion, Defendant "seeks to dismiss his motion under 28 U.S.C. § 2255 without prejudice as he wishes to voluntarily withdraw his claim of ineffective assistance of counsel." (Id. at 1.) Defendant explains that he "received contradictory legal advice but has [been] persuaded that a § 2255 would be meritless due to previous rulings by this Court and the Tenth Circuit Court of Appeals." (Id.)
Defendant's motion to voluntarily dismiss (Doc. 131) is unopposed and is GRANTED. Defendant's previously-filed motion to vacate sentence under § 2255 motion (Doc. 125) is hereby DISMISSED. The court declines to characterize the dismissal as without prejudice, as any subsequently-filed § 2255 motion could be regarded as a second or subsequent motion under the standards explained in United States v. Rejda, 790 F. App'x 900, 904 (10th Cir. 2019) (finding voluntarily dismissed § 2255 motion counted as a first § 2255 motion where petitioner conceded that the motion lacked merit.) IT IS SO ORDERED this 29th day of October, 2020.
s/ John W. Broomes
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE