United States District Court, E.D. Tennessee
KAMERON S. TERRY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.
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]. 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.
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)].
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).
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]. 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].
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].
MOTION FOR VOLUTNARY 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.
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).
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. 89]. The United
States responded by challenging the first and second
assertions, but not the third [Doc. 91].
considering the parties' arguments and evaluating the
instant case in light of the Grover factors, this
Court does not believe that ...