United States District Court, E.D. Tennessee, Chattanooga
L. COLLIER U.S. DISTRICT COURT 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. 461]; 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. 462].
filed the underlying motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255 on May 24, 2016
[Doc. 440]. In it, he: (1) challenges his enhancement
under § 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sentence is no longer valid because the Guidelines residual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. 445] and FDSET conceded that Petitioner was
not entitled to relief [Doc. 449]. Petitioner filed a pro se
reply to the United States' response in opposition [Doc.
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 instant motions
for dismissal with and without prejudice [Docs. 461, 462].
MOTION FOR 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.
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. 461]. The United
States responded by challenging the first and second
assertions, but not the third [Doc. 462].
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 voluntary 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
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. 461 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 the Sixth Circuit held
“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 ...