Harrell v. United States

Background

Tyquez Harrell pleaded guilty to Hobbs Act robbery under 18 U.S.C. § 1951 and to brandishing, using, and carrying a firearm during and in relation to that robbery under 18 U.S.C. § 924(c)(1)(A)(ii). The court sentenced him to 125 months of imprisonment—84 months for the firearm conviction and 41 consecutive months for the robbery conviction—followed by five years of supervised release. The plea agreement included a waiver of his right to bring a challenge under 28 U.S.C. § 2255, the federal procedure for asking the sentencing court to vacate, set aside, or correct a sentence.

Harrell later filed a § 2255 petition challenging the firearm conviction. He argued that Hobbs Act robbery did not satisfy the “force clause” of § 924(c)(3)(A), which defines one category of crime of violence, and that the statute’s “residual clause” in § 924(c)(3)(B) was unconstitutionally vague. The government opposed the petition, relying on a Second Circuit decision holding that substantive Hobbs Act robbery qualifies as a crime of violence under the force clause. The government also argued that Harrell’s plea-agreement waiver barred his challenge.

Motion to Dismiss

Before the court reviewed the § 2255 petition, Harrell moved under Federal Rule of Civil Procedure 41(a)(2) to voluntarily dismiss it without prejudice. He said he wanted to avoid further judicial expenditure while appellate developments concerning whether Hobbs Act robbery is a crime of violence were pending. He also argued that dismissal without prejudice was necessary to avoid the restrictions that § 2255 places on a later second or successive petition.

The government opposed the motion. It argued that Harrell’s request was based on his recognition that the underlying petition would be denied on the merits and that dismissal without prejudice could circumvent the procedures limiting second or successive § 2255 petitions.

Court’s Analysis

The court applied the Second Circuit’s five factors for voluntary dismissal without prejudice, commonly called the Zagano factors: undue vexatiousness, the expense of duplicative litigation, the petitioner’s diligence, how far the case had progressed and the respondent’s related efforts and expenses, and the adequacy of the petitioner’s explanation.

The court found that the government had not shown substantial prejudice. It determined that Harrell had not acted vexatiously, that the government had incurred little expense beyond opposing the motion, and that there had been little or no discovery or other significant litigation. The court also found that Harrell acted diligently by moving to dismiss within a month after filing his supporting memorandum and that his explanation was adequate. The court noted that it had not issued an order addressing Harrell’s habeas application and that no merits ruling was pending.

Disposition

Judge Richard M. Berman granted Harrell’s motion to voluntarily dismiss his § 2255 petition without prejudice and requested that the clerk close the case. The court expressly stated that it was not ruling on the merits of Harrell’s claim. It also did not decide whether any future § 2255 motion would be meritorious or whether a future petition would be considered second or successive. Because the order resolved only the voluntary-dismissal request and did not decide the underlying habeas question, this is a procedural order.