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Terry v. United States

United States District Court, E.D. Tennessee

May 5, 2017

KAMERON S. TERRY, Petitioner,



         Before the Court is Petitioner's supplemented motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 69, 84].[1] The United States filed initial and cumulative responses in opposition [Docs. 77, 86]. Petitioner did not reply and the time for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2. Recently, Petitioner filed a motion to voluntarily dismiss the action without prejudice in light of Beckles v. United States, 137 S.Ct. 886 (2017) [Doc. 89]. The United States filed a supplement [Doc. 90] and response in opposition [Doc. 91]. For the reasons below, the motion for voluntary dismissal [Doc. 89] will be DENIED and supplemented petition [Docs. 69, 84] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2009, Petitioner pled guilty to conspiring to distribute at least five grams of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B) [Doc. 30 ¶ 1], and “knowingly and voluntarily waive[d] the right to file any motions or pleadings pursuant to 28 U.S.C. § 2255, ” except for claims of ineffective assistance or prosecutorial misconduct [Id. ¶¶ 14(b)].

         He faced a statutory penalty range of five to forty years' imprisonment [Presentence Investigation Report (PSR) ¶ 53]. Based on two prior convictions for aggravated burglary, the United States Probation Office deemed Petitioner to be a career offender under Section 4B1.1 of the United States Sentencing Guidelines with a corresponding Guideline range of 188 to 235 months' imprisonment [Id. ¶ 54]. This Court sentenced Petitioner to a below-Guidelines term of 170 months' imprisonment [Doc. 42]. No direct appeal was taken and Petitioner's conviction became final for purposes of § 2255(f)(1) on July 9, 2009, at expiration of time to file an appeal. See Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (an unappealed judgment of conviction becomes final when the fourteen-day period for filing a direct appeal has elapsed).

         Almost five years later-on June 20, 2014-Petitioner, through counsel, filed a § 2255 motion in which he alleged that he had been improperly categorized as a career offender in light of Descamps v. United States, 133 S.Ct. 2276 (2013) [Doc. 69].[2] The Supreme Court decided Johnson v. United States-invalidating the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)-on June 26, 2015. 135 S.Ct. 2551 (2015). Less than one year later, Petitioner supplemented his original petition with a challenge based on that decision [Doc. 84].

         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. 87]. Shortly thereafter, this Court received the motion for voluntary dismissal [Doc. 89]. The United States responded in opposition [Doc. 91].


         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 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. 89]. The United States responded by challenging the first and second assertions, but not the third [Doc. 91].

         After considering the parties' arguments and evaluating the instant case in light of the Grover factors, this Court does not believe that ...

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