United States District Court, E.D. Tennessee, Chattanooga
CHARLES W. DUPREE, Respondent
UNITED STATES OF AMERICA, Petitioner.
K. Lee Magistrate Judge.
R. MCDONOUGH 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.
24), 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. 23).
filed the underlying motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255 on June 24, 2016
(Doc. 19). In it, he 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sentence is no longer valid because the Guidelines residual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)). On August 24, 2016, the United
States requested that this Court “defer ruling”
on the petition until the Supreme Court addressed whether the
guidelines were subject to void for vagueness attack and, if
so, whether that “new rule” applied retroactively
on collateral review (Doc. 21 (“(I)n the interests of
justice, and in an effort to promote judicial economy, the
United States asks this Court to deter ruling on
Petitioner's pending § 2255 motion until the Supreme
Court decides Beckles, after which the United States
will file a supplemental response.”)). That motion has
not yet been resolved.
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.
Shortly thereafter, this Court received the notice of
voluntary dismissal and motion to deny and dismiss (Docs. 23,
NOTICE OF 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 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. 21).
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. 21 pp. 1-3
(“(T)he Sixth Circuit has consistently emphasized that
the issue will be decided by . . . Beckles . . .
(and) urged . . . motions raising that issue (be held) in
abeyance.”)). 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 citation omitted)).
this Court finds that Petitioner filed his notice of
voluntary dismissal (Doc. 24) 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
MOTION TO DENY AND ...