United States District Court, D. Hawaii
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
Michael Seabright, Chief United States District Judge
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.
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.
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). ECF No. 34. For
the reasons discussed below, the court GRANTS voluntary
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)'srestrictions 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
Rule 41(a) Applies to § 2255 Actions
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). 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.
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).
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.
Application of Rule 41(a) to the Instant Proceeding
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 ...