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United States v. Henderson

United States District Court, D. Hawaii

August 25, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
RICHARD STUART HENDERSON, JR., Defendant-Petitioner. Cr. No. 12-00646 JMS

          ORDER GRANTING VOLUNTARY DISMISSAL OF MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY

          J. Michael Seabright, Chief United States District Judge

         I. INTRODUCTION

         Before the court is Petitioner Richard Stuart Henderson, Jr.'s (“Petitioner”) Notice of Voluntary Dismissal (“Notice”) of his Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (“§ 2255 Motion”). ECF No. 34. For the reasons discussed below, the court GRANTS voluntary dismissal of the § 2255 Motion.

         II. BACKGROUND

         On June 23, 2016, Petitioner filed his § 2255 Motion, challenging his sentencing designation of a prior Hawaii conviction for first degree terroristic threatening as a crime of violence under § 4B1.2 of the United States Sentencing Guidelines. ECF No. 71. On July 8, 2016, the court stayed this proceeding pending a decision in Beckles v. United States, No. 15-8544, cert granted, 136 S.Ct. 2510 (Mem.) (June 27, 2016). ECF No. 29. Beckles was decided on March 6, 2017, __ U.S. __, 137 S.Ct. 886 (2017), thereby lifting the stay.

         On April 18, 2017, Petitioner's counsel filed a memorandum indicating that upon obtaining Petitioner's consent, he would seek dismissal of the § 2255 Motion pursuant to Federal Rule of Civil Procedure 41(a)(1). ECF No. 32. On April 24, 2017, the Government filed a memorandum opposing Petitioner's anticipated request for voluntary dismissal and seeking a ruling on the merits of the § 2255 Motion. ECF No. 33. On August 24, 2017, Petitioner filed the instant Notice pursuant to Rule 41(a)(1)(A)(i).[1] ECF No. 34. For the reasons discussed below, the court GRANTS voluntary dismissal.

         III. DISCUSSION

         Petitioner contends that he is entitled to voluntary dismissal under Rule 41(a)(1)(A)(i) because the Government has filed neither an answer nor a motion for summary judgment. The Government contends, however, that (1) Rule 41(a) does not apply to § 2255 proceedings, (2) voluntary dismissal would arguably relieve Petitioner from being subject to 28 U.S.C. § 2255(h)'s[2]restrictions applicable to second and successive petitions, and (3) because the law now clearly bars Petitioner's claim, the court should issue a ruling on the merits. The Government's arguments are not persuasive.

         A. Rule 41(a) Applies to § 2255 Actions

         Rule 12 of the Rules Governing Section 2255 Proceedings (the “Governing Rules”) provides that the Federal Rules of Civil Procedure apply “to the extent that they are not inconsistent with any statutory provisions or these rules.” Section 2255 sets forth the process by which a district court considers such a motion. 28 U.S.C. § 2255(b).[3] And Governing Rule 4(b) directs the court to “promptly examine” a § 2255 motion, and dismiss the motion, if plainly appropriate, or direct the Government to respond.

         The Government argues that because neither § 2255 nor Rule 4(b) authorizes dismissal without consideration of the merits, they are “inconsistent” with Rule 41(a) and preclude voluntary dismissal pursuant to Rule 41(a). Both this court and numerous other courts disagree. See United States v. Cargill, 2017 WL 1316925, at *2 (D. Minn. Apr. 7, 2017) (granting request for Rule 41(a) dismissal of § 2255 motion); see also Goss v. United States, 2017 WL 1244900, at *1 (E.D. Mich. Apr. 5, 2017) (dismissing § 2255 motion based on petitioner's Rule 41(a) notice of voluntary dismissal); Ford v. United States, 2016 WL 4499088, at *3 (C.D. Cal. Aug. 26, 2016) (offering petitioner the option of requesting Rule 41(a) voluntary dismissal of § 2255 petition). And although one district court found that it would be inappropriate to grant a Rule 41(a)(2) dismissal of a § 2255 claim now precluded by Beckles, that court did not rule that voluntary dismissal is necessarily precluded by § 2255 and Governing Rule 4(b). United States v. Savage, 2017 WL 13837660, at *1 (D. Mont. Apr. 12, 2017).

         Based on the foregoing, the court finds that neither the statutory language of § 2255 nor Governing Rule 4(b) preclude a Rule 41(a) voluntary dismissal.

         B. Application of Rule 41(a) to the Instant Proceeding

         Whether Rule 41(a)(1) or (a)(2) applies to this action, however, is not entirely clear. Even though the Government has not filed an answer or a motion for summary judgment (suggesting Rule 41(a)(1)(A)(i) applies) neither response is appropriate in § 2255 proceedings. And it is not clear whether the Government's memorandum opposing ...


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