United States District Court, E.D. Tennessee
GREER UNITED STATES DISTRICT JUDGE.
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].
filed the underlying motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255 on June 21, 2016
[Doc. 35]. 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(suggesting that his sentence is no longer valid because the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)]. The United States responded in opposition
[Doc. 38]; Petitioner replied in turn [Doc. 39].
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].
PETITIONER'S REQUEST FOR COUNSEL
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.
MOTION FOR VOLUNTARY DISMISSAL WITHOUT PREJUDICE
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.
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).
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)).
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].
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
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