United States District Court, E.D. Tennessee, Knoxville
W. PHILLIPS SENIOR 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. 48]; 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. 47].
filed the underlying motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255 on June 19, 2016
[Doc. 41]. In it, he: (1) challenges his enhancement
under Section 4B1.1 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(suggesting that his sentence is no longer valid because the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. 44]; Petitioner did not reply. E.D. Tenn. L.R. 7.1,
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. 46]. Shortly thereafter, this
Court received the instant motions for dismissal with and
without prejudice [Docs. 47, 48, 49].
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.
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. 48]. The United
States responded by challenging the first and second
assertions, but not the third [Doc. 49].
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 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, retroactivity,
and the categorical and modified categorical approaches. The
fact that it used similar or identical analysis in other
Johnson-based post-conviction challenges does not
change the fact that the instant motion for relief resulted
in, or at least contributed to, a significant expenditure of
time and resources.
allowing voluntarily dismissal without prejudice at this
stage of the proceeding, i.e., after the United States
responds to the merits of the petition, could result in
widespread abuse and significant prejudice to the United
States. Under the “Antiterrorism and Effective Death
Penalty Act of 1996, ” petitioners cannot file a second
or successive § 2255 petition in the district court
until they move in the United States Court of Appeals for an
order authorizing the district court to consider that motion.
See Rule 9 Governing Section 2255 Proceedings
(“Before presenting a second or successive motion, the
moving party must obtain an order from the appropriate court
of appeals authorizing the district court to consider the
motion.”). The standard for gaining leave to file a
second or successive petition is significantly higher than
that involved with a petitioner's initial collateral
challenge. 28 U.S.C. § 2255(h). It is not hard to
imagine that prisoners might circumvent the successive filing
barrier by submitting an initial § 2255 challenge,
securing a response from the United States, reviewing that
response to determine whether he likes or dislikes his
chances of success, moving to voluntarily dismiss without
prejudice under Rule 42(a)(2) when he concludes that the odds
of a favorable ruling are too slim, and submitting an
entirely new petition with distinct grounds of collateral
attack. He could then repeat the process.
this Court disagrees that this case is distinguishable from a
typical § 2255 motion because the theories for relief
were legitimate and meritorious when filed [Doc. 48 pp. 1, 3
(“[Petitioner] has provided the Court with a sufficient
basis for the need to take a dismissal, namely, that the
developing body of law in this matter morphed since the
filing of the § 2255 motion from a legitimate arguable
claim, to a meritorious claim (due to Pawlak[v. United
States, 822 F.3d 902 (6th Cir. 2016)]), then finally a
non-meritorious claim (due to Beckles).”)].
While it is true that the Sixth Circuit held “that
Johnson's vagueness analysis applie[d] equally
to the Guidelines and, as a result, that the parallel
residual provision contained in Section 4B1.2 was void for
vagueness, ” Pawlak, 822 F.3d at 911, neither
it nor the Supreme Court ever held that the resulting rule
applied on collateral review, see In re Embry, No.
16-5447, 2016 WL 4056056, at *1 (6th Cir. July 29, 2016)
(recognizing that “it is not clear whether to treat
Pawlak as a new rule that the Supreme Court has not
yet made retroactive [to cases on collateral review] or as a
rule dictated by Johnson that the Supreme Court has
made retroactive”). In fact, the courts within this
district have consistently held that it would not. Henley
v. United States, No. 1:14-cv-328-CLC, 2016 WL 2643002,
at *2-5 (E.D. Tenn. May 9, 2016) (concluding that the Supreme
Court had not yet “made” Johnson's
application in the Guideline context retroactive on
collateral review); Lynn v. United States, No.
3:15-cv-571-TWP, 2016 WL 1258487, at *2-4 (E.D. Tenn. Mar.
30, 2016) (same); Barnes v. United States,
3:15-cv-375-TAV, 2016 WL 1175092, at *2-4 (E.D. Tenn. Mar.
23, 2016) (same); Frazier v. United ...