United States District Court, E.D. Tennessee, Knoxville
JASON M. HAMMOND, Petitioner,
UNITED STATES OF AMERICA, Respondent.
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE.
the Court are Petitioner's notice of voluntary dismissal
under Federal Rule of Civil Procedure 41(a)(1)(A)(i) [Doc.
1220], and the United States' motion to deny and dismiss
that same action with prejudice in light of Beckles v.
United States, 137 S.Ct. 886 (2017) [Doc. 1216].
filed the underlying motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255 on June 27, 2016
[Doc. 1104]. 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. at 4
(suggesting that his sentence is no longer valid because the
Guidelines residual provision is equally vague)]; and (2)
argues that trial counsel rendered ineffective assistance for
failing to object to that career offender designation at the
sentencing hearing [Id. at 5]. On August 10,
2016, the United States requested that this Court
“defer ruling” on the petition until the Supreme
Court addressed the following issues: whether the guidelines
were subject to void for vagueness attack and, if so, whether
that “new rule” applied retroactively on
collateral review [Doc. 1167 (“[I]n the interests of
justice, and in an effort to promote judicial economy, the
United States asks this Court to defer ruling on
Petitioner's pending § 2255 motion until the Supreme
Court decides Beckles, after which the United States
will file a supplemental response.”)]. This Court
agreed that “a stay [was] appropriate under the
circumstances, ” stayed the case, and ordered that the
parties “file a joint status report within thirty . . .
days of [the Beckles holding]” [Doc. 1188].
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. 1214]. Shortly thereafter, this
Court received the United States' motion to deny and
dismiss [Doc. 1216], and a pro se supplement asserting
additional theories of ineffective assistance of counsel
[Doc. 1219]. On April 6, 2017, Petitioner, through counsel,
submitted a notice of voluntary dismissal [Doc. 1220].
NOTICE OF 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 properly filed
notices of voluntary dismissal are self-effectuating, the
issue before this Court is whether Petitioner retains his
unilateral rights under Rule 41(a)(1), or is limited to the
procedures available under Rule 41(a)(2). The answer depends
on whether any of the filings that the United States
submitted prior to the notice constitute an
“answer” or “motion for summary
judgment” under Rule 41(a)(1)(A)(i).
initial matter, binding Sixth Circuit precedent prevents this
Court from construing the United States' motion to deny
and dismiss with prejudice as an answer or a motion for
summary judgment for purposes of Rule 41(a)(1)(A)(i).
See, e.g., Aamot v. Kassel, 1 F.3d 441, 444
(6th Cir. 1993) (“[W]e decline to agree with the
District Court's action and follow those cases which
‘treat' motions to dismiss filed pursuant to Rule
12(b)(6) as summary judgment motions for purposes of barring
voluntary dismissal.”). All that remains is the motion
to defer [Doc. 1167].
to the Rule 5 Governing § 2255 Proceedings, answers to
petitions for collateral relief must: (1) “address the
allegations in the motion;” (2) “state whether
the moving party has used any other federal remedies,
including any prior post-conviction motions under these rules
or any previous rules;” and (3) specify “whether
the moving party received an evidentiary hearing.”
United States' motion to defer does none of the above.
While it acknowledges that the Sixth Circuit extended
Johnson to the Guidelines residual clause in
Pawlak v. United States, 822 F.3d 902 (6th Cir.
2016), and argues that Petitioner still “ha[d] not
shown . . . that Johnson applies retroactively to
the Guidelines on collateral review, ” it does so only
as justification for why this Court should defer ruling and
additional briefing until the Supreme Court's potentially
dispositive ruling in Beckles [Doc. 1167 pp. 1-3].
Unlike the “response[s] in opposition” filed by
the United States in a majority of this district's
Johnson-based collateral challenges, the motion to
defer includes neither a lengthy discussion of constitutional
vagueness and retroactivity nor any application of
categorical and modified categorical approaches to the prior
convictions that Petitioner claimed no longer qualified as
crimes of violence. For these reasons and because the motion
focuses on the need to defer ruling instead of the need to
grant or deny relief, this Court declines to construe it as
an answer or motion for summary judgment under Rule
41(a)(1)(A)(i). Accord Brown v. T-Ink, LLC, No.
07-cv-13111, 2007 WL 4098207, at *4 (E.D. Mich. Nov. 16,
2007) (“‘[M]otion to compel arbitration and stay
proceedings is not the equivalent of an answer or a motion
for summary judgment' under Rule 41(a)(1).”
(quoting Hamilton v. Shearson-Lehman American
Express, Inc., 813 F.2d 1532, 1535 (9th Cir. 1987));
see also Merit Ins. Co. v. Leatherby Ins. Co., 581
F.2d 137, 142 (7th Cir. 1978) (holding that motion to stay
was not the equivalent of an answer or motion for summary
judgment because “[m]erits of the controversy are not
to be considered by the court” (internal quotation and
this Court finds that Petitioner filed his notice of
voluntary dismissal [Doc. 1220] before the United States
field an answer or a motion for summary judgment within the
meaning of Rule 41(a)(1)(A)(i), that “notice of
dismissal is self-effectuating, leaving no basis upon which
[this Court] can prevent . . . dismiss[al] without
prejudice.” Aamot, 1 F.3d at 445; see also
Ames v. Ethicon Endo-Surgery, Inc., No. 11-2942, 2012 WL
215234, at *1 (W.D. Tenn. Jan. 24, 2012) (“Rule
41(a)(1) explicitly leaves the option to dismiss in the
plaintiff's hands: once [a] plaintiff gives his notice,
the lawsuit is no more.” (quoting Aamot, 1
F.3d at 444)); White v. Berkebile, No. 5:09-cv-0796,
2009 WL 6700835, at *2-3 (S.D.W.V. Dec. 4, 2009) (dismissing
§ 2255 motion without prejudice where the petitioner
filed a notice of voluntary dismissal before the United
States filed a response in opposition or in support of the
collateral relief requested).
Motion to Deny and Dismiss With Prejudice
discussed, a petitioner can voluntarily dismiss his or her
§ 2255 motion without an order of the district court by
filing a notice of dismissal at any time before service of an
answer or motion for summary judgment by the United States,
whichever occurs first. Ames, 2012 WL 215234, at *1.
The Sixth Circuit has held that this rule should be
“taken at face value” and that district courts
should assume that the rule “means what it says.”
Aamot, 1 F.3d at 444 (quoting Carter v. United
States, 547 F.2d 258, 259 (5th Cir. 1997)). Because Rule
41(a)(1)(A)(i) “does not sanction a case-by-case
analysis of the amount of effort expended by the [United
States]” and the instant action was ...