Free Order on Motion to Withdraw Document - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 NAJAH TOMA ZETOUNA, 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:02-cr-00922-FJM Document 421 Filed 11/01/2005 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, Plaintiff, vs.

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CR- 02-922-PHX-FJM CV-05-1748-PHX-FJM (LOA) ORDER

The court has before it the defendant's Motion to vacate, set aside, or correct sentence by a person in federal custody under 28 U.S.C § 2255 (doc. 406), defendant's Motion to withdraw the motion to vacate (doc. 413), the Report and Recommendation of the magistrate judge (doc. 415), and the defendant's Objection to the Report and Recommendation (doc. 417). In addition to recommending that we grant the motion to withdraw, the Report and Recommendation raised a legal issue for the defendant's consideration; that is, whether any future § 2255 motion would be a second or successive petition. The defendant objects to that part of the Report and Recommendation and argues that while the magistrate judge did not directly recommend that the petition be dismissed with prejudice, he implied it. Thus, the defendant asks us to dismiss the motion without prejudice.

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The legal issue raised in the Report and Recommendation and objected to by the defendant is not before us. The magistrate judge did not recommend that we dismiss with prejudice. Nor would it be appropriate to dismiss without prejudice. The effect of withdrawing a § 2255 motion should be decided, if at all, only if and when another petition is filed. The Report and Recommendation raised the issue as a courtesy to counsel. Accordingly, IT IS ORDERED GRANTING the defendant's motion to withdraw the motion to vacate (doc. 413). Thus the motion to vacate is deemed withdrawn and this habeas action is dismissed (doc. 406) DATED this 28th day of October, 2005.

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