United States District Court, E.D. Tennessee, Greeneville
RONNIE GREER UNITED STATES DISTRICT JUDGE
April 23, 2014, pursuant to his negotiated plea agreement,
Billy Hartness (“Petitioner”) pled guilty to
conspiracy to manufacture 5 grams or more of methamphetamine,
in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)
[Docs. 246, 404]. For this offense, Petitioner was sentenced
as a career offender to 211 months' imprisonment [Doc.
424]. Petitioner did not file a direct appeal, but instead he
submitted a motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 and thereafter a
supplement [Docs. 597 and 615]. Before the Court are the United
States' motion to deny and dismiss that motion to vacate
with prejudice in light of Beckles v. United States,
137 S.Ct. 886 (2017) [Doc. 626], and Petitioner's notice
of voluntary dismissal under Federal Rule of Civil Procedure
41(a)(1)(A)(i) [Doc. 627].
§ 2255 motion, [Doc. 597], Petitioner challenges his
career offender enhancement under Section 4B1.2 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 (suggesting that his sentence is no longer
valid because the residual provision in Section 4B1.2 is
equally vague, as held in United States v. Pawlak,
822 F.3d 902 (6th Cir. 2016), overruled by Beckles v.
United States, 137 S.Ct. 886 (2017)). In the
supplement, Petitioner argues that his offense for aggravated
burglary is divisible and that, thus, only specific
state-court documents may be consulted to determine whether
that offense qualifies as a predicate offense for his
career-offender designation [Doc. 615]. For the reasons
below, the § 2255 motion will be DISMISSED
22, 2016, the United States requested that this Court
“defer ruling” on the petition until the Supreme
Court determined whether Johnson applies to the
residual clause of the career- offender guideline and, if so,
whether it applies retroactively on collateral review [Doc.
602 at 3 (“[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 § 2255
motion until the Supreme Court decides Beckles,
after which the United States will file a supplemental
response to petitioner's § 2255 motion.”)].
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. Of
course, this holding obviated any need to determine the
retroactivity issue. On March 26, 2017, the United States
filed the motion to deny and dismiss, and, the next day,
Petitioner filed his notice of voluntary dismissal [Docs.
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.
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 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.”). Thus, all that remains is the
motion to defer [Doc. 602].
to Rule 5 of the Rules 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
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 “has 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 until
the Supreme Court's potentially dispositive ruling in
Beckles [Doc. 602]. Unlike the responses 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. Based on this
analysis, the Court rejects the United States' position
that the motion to defer is a “respon[se] to the
substance of petitioner's § 2255 motion” [Doc.
626 at 2 n.1].
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. 627] before the United States filed
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 ...