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Jones v. United States

United States District Court, E.D. Tennessee

May 4, 2017




         Before the Court are competing motions: Petitioner seeks permission to voluntarily dismiss his collateral challenge without prejudice under Federal Rule of Civil Procedure 41(a)(2) [Doc. 45]; the United States asks that this Court deny and dismiss that same collateral challenge with prejudice in light of Beckles v. United States, 137 S.Ct. 886, 894 (2017) [Doc. 42].

         Petitioner filed the underlying motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on June 21, 2016 [Doc. 35].[1] In it, he: (1) challenges his enhancement under Section 2K2.1 of the United States Sentencing Guidelines based on Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual provision of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague [Id. (suggesting that his sentence is no longer valid because the Guidelines residual provision is equally vague)].[2] The United States responded in opposition [Doc. 38]; Petitioner replied in turn [Doc. 39].

         On March 6, 2017, the Supreme Court held in Beckles that the United States Sentencing Guidelines are “not amenable to vagueness challenges.” 137 S.Ct. at 894. Two weeks later, this Court entered an Order (1) explaining that Beckles necessarily meant that “Johnson . . . does not undermine sentences based on Guideline enhancements;” (2) instructing the parties to “file any motion that they want[ed] the Court to consider in conjunction with, or prior to, ruling on [the instant] petition[] on or before April 1, 2017;” and (3) requiring that responsive pleadings be filed on or before April 15, 2017 [Doc. 41]. This Court granted Petitioner a two-week extension [Doc. 44], and received the instant motions for dismissal with and without prejudice [Docs. 42, 45, 46].


         This Court is also in possession of a pro se request that counsel be appointed to assist in the litigation of his Johnson-based petition for relief. As previously stated, this Court appointed FDSET to investigate and represent all individuals whom they believed to be entitled to collateral relief based on Johnson. E.D. Tenn. S.O. 16-02 (Feb. 11, 2016). Consistent with that appointment, FDSET filed the instant petition [Doc. 35], a reply to the United States'S response [Doc. 39], and a motion for voluntarily dismissal without prejudice [Doc. 45]. Because this Court already appointed counsel, Petitioner's pro se request for the same is moot and will be denied accordingly.


         Federal Rule of Civil Procedure 41(a)(1)(A)(i) provides that a movant may voluntarily dismiss an action without a court order by filing “a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment[.]” Subsection (B) states the following:

Unless the notice of dismissal or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal-or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

         Fed. R. Civ. P. 41(a)(1)(B). By contrast, Federal Rule of Civil Procedure 41(a)(2) provides that “[e]xcept as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” Because the United States responded in opposition to the § 2255 motion and because that response addressed the merits of the petition, Petitioner's ability to voluntarily dismiss the instant action depends on Rule 41(a)(2).

         Whether to grant voluntary dismissal under Rule 41(a)(2) is within the sound discretion of the district court. Grover by Grover v. Eli Lilly and Co., 33 F.3d 716, 718 (6th Cir. 1994). An abuse of discretion exists “only where the [non-movant] would suffer ‘plain legal prejudice' as a result of a dismissal without prejudice, as opposed to facing the mere prospect of a second lawsuit.” Id. (quoting Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217 (1947)). In determining whether the non-movant will suffer “plain legal prejudice, ” the district court should consider the following: “the [non-movant's] effort and expense of preparation for trial, excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, insufficient explanation for the need to take a dismissal, and whether a motion for summary judgment has been filed by the defendant.” Id. (citing Kovalic v. DEC Int'l, Inc., 855 F.2d 471, 474 (7th Cir. 1988)). It is not necessary that every factor be resolved in favor of the moving party for dismissal to be appropriate. The factors only serve as a guide for the district court's consideration in making its determination. See Rast v. City of Pigeon Forge, No. 3:10-cv-52, 2011 WL 884941, at *3 (E.D. Tenn. Mar. 11, 2011) (quoting Rosenthal v. Bridgestone/Firestone, Inc., 217 F. App'x 498, 502 (6th Cir. 2007)).

         Petitioner cites the following in support of voluntary dismissal: (1) the petition contained a legitimate and meritorious legal challenge when filed but was later rendered non-meritorious by Beckles; (2) the United States expended little effort and expense in filing the response by using the same form motion in numerous Johnson cases; and (3) there was no lack of diligence or excessive delay on the part of Petitioner in requesting dismissal [Doc. 45]. The United States responded by challenging the first and second assertions, but not the third [Doc. 46].

         After considering the parties' arguments and evaluating the instant case in light of the Grover factors, this Court does not believe that dismissal without prejudice would be appropriate.

         First, the United States expended significant effort in responding to the petition. Cf. Rule 5 of the rules Governing Section 2255 Proceedings (explaining that the United States is not required to respond to a § 2255 motion unless ordered to do so by the district court). In addition to conducting an individualized evaluation of Petitioner's case, the United States researched and briefed several complex legal issues, including constitutional vagueness and retroactivity. The fact that it used similar or identical analysis in other Johnson-based post-conviction ...

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