Opinion
Case No.: 4:11cr53/RH/CAS Case No.: 4:16cv311/RH/CAS
08-24-2017
UNITED STATES OF AMERICA, v. HENRY JAMES JACKSON, Defendant.
REPORT AND RECOMMENDATION
This case is before the court on Defendant's "Motion to Dismiss § 2255 Motion Without Prejudice." (ECF No. 113). On May 27, 2016, Defendant filed a motion to vacate, set aside, or correct sentence asserting that he is entitled to sentencing relief under the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015). (ECF No. 87). After being granted several extensions of time to file its response, the Government filed its response in opposition on June 5, 2017. (ECF No. 108). In lieu of filing a reply, Defendant filed the instant motion to dismiss in which he acknowledges that the Supreme Court's decision in United States v. Beckles, 137 S. Ct. 886 (2017) (holding that the Sentencing Guidelines are not subject to vagueness challenges under the Due Process Clause), forecloses relief. Defendant seeks, through voluntary dismissal of his § 2255 motion, to avoid the bar on second or successive § 2255 motions. He recognizes that the statute of limitations may limit his ability to seek post-conviction relief, but states that it is "conceivable that [he] may again have a reason and ability to file an original habeas corpus [petition]." (ECF No. 113 at 2). In light of Defendant's concession that he, like amny others, "rushed to file a § 2255 motion" to preserve his rights in the event that Johnson invalidated portions of the Sentencing Guidelines, dismissal without prejudice may be warranted.
Accordingly, it is respectfully RECOMMENDED:
Defendant's "Motion to Dismiss § 2255 Motion Without Prejudice," (ECF No. 113), be GRANTED, and Defendant's § 2255 motion be dismissed without prejudice.
At Tallahassee, Florida, this 24th day of August, 2017.
s/ Charles A. Stampelos
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen (14) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only , and does not control. A copy of objections shall be served upon all other parties. If a party fails to object to the magistrate judge's findings or recommendations as to any particular claim or issue contained in a report and recommendation, that party waives the right to challenge on appeal the district court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.