United States District Court, E.D. Tennessee, Knoxville
matter is before the Court on Petitioner Ashley Morris's
(“Morris”) motion to vacate, set aside, or
correct her sentence pursuant to 28 U.S.C. § 2255 [Doc.
1]. [Criminal Doc. 549].
November 30, 2017, Morris was sentenced to 128 months of
imprisonment after she pleaded guilty to her role in a
conspiracy to distribute fifty grams or more of
methamphetamine. On December 14, 2018, Morris, through
counsel, filed this motion to vacate, set aside, or correct
Morris's sentence under 28 U.S.C. § 2255. The
substance of the motion in its entirety stated:
Ms. Morris's attorney in the trial court rendered
ineffective assistance of counsel by providing Ms. Morris
with misleading information and failing to inform her of
information, regarding her constitutional, statutory, and
procedural rights in relation to her defending against the
allegations in the indictment, her pleading guilty, and the
sentencing, appeal, and collateral attack processes,
notwithstanding the trial court's inquiry at the
change-of-plea hearing, all resulting in Ms. Morris'
entering into a plea agreement with the Government and
pleading guilty before the trial court uninformed,
unknowingly, and involuntarily.
the motion's noncompliance with Rule 2(c) of the Rules
Governing Section 2255 Proceedings for the United States
District Courts (§ 2255 Rules”), Morris was
instructed to file an amended § 2255 motion by January
2, 2019 or face dismissal for failure to prosecute and follow
the orders of this Court [Doc. 3].
December 31, 2018, Morris, through counsel, moved for an
extension of time to file Morris's amended § 2255
motion [Doc. 4], which was granted [Doc. 5]. On January 27,
2019, Morris, through counsel, requested a second extension
of time to file [Doc. 6], which was also granted [Doc. 7].
The February 14, 2019 deadline passed, along with ten
Standard of Review
Federal Rule of Civil Procedure 41(b)
§ 2255 motions initiate civil proceedings, they may be
governed by the Federal Rules of Civil Procedure to the
extent that they are not inconsistent with the statutes and
rules specifically governing cases under 28 U.S.C. §
2255. § 2255 Rule 12; Bowdidge v. Lehman, 252
F.2d 366, 368 (6th Cir. 1958). Under Federal Rule of Civil
Procedure 41(b) a court may dismiss a case for “failure
of the plaintiff to prosecute or to comply with these rules
or any order of the court.” See, e.g., Nye
Capital Appreciation Partners, L.L.C. v. Nemchik, 483
Fed.Appx. 1, 9 (6th Cir. 2012); Knoll v. Am. Tel. &
Tel. Co., 176 F.3d 359, 362-63 (6th Cir. 1999); Moss
v. United States, No. 3:16-CV-219-TAV, 2019 WL
921444, at *1 (E.D. Tenn. Feb. 25, 2019). Four factors guide
a court weighing dismissal under Rule 41(b):
(1) whether the party's failure is due to willfulness,
bad faith, or fault; (2) whether the adversary was prejudiced
by the dismissed party's conduct; (3) whether the
dismissed party was warned that failure to cooperate could
lead to dismissal; and (4) whether less drastic sanctions
were imposed or considered before dismissal was ordered.
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir.