United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr., United States District Judge.
MATTER is before the court on court-appointed counsel's
Amended Motion to Withdraw as Counsel (#10) and Motion to
Seal (#11). In accordance with Local Civil Rule 6.1, the
Motion to Seal will be granted as the underlying amended
motion discusses privileged attorney-client communications.
Having review the amended motion and the attachments thereto,
the court finds that counsel has shown good cause to
withdraw, all in accordance with the Court's earlier
Order and Local Civil Rule 83.1(f). As petitioner is now
proceeding pro se and there is a pending Motion to Dismiss
this action, he is advised as follows:
government has filed a Motion to Dismiss. The government
contends, among other things, that the underlying claim is
without merit under a recent decision of the United States
Supreme Court in Beckles v. United States, ___ U.S.
___, 137 S.Ct. 886 (March 6, 2017). As petitioner is now
proceeding without counsel, he will be advised of his
obligations in Responding to the Motion to Dismiss and also
advised of his opportunity to take a voluntary dismissal
Advice of Opportunity to File a Response
accordance with Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), petitioner is advised that he has an
opportunity to respond to the government's Motion to
Dismiss. Any Response must be in writing and filed with the
Court within 30 days of the issuance of this Order.
Petitioner must also mail a copy of that Response to counsel
for the government. Failure to respond or take further action
(as discussed below) may result in the government's
Motion to Dismiss being summarily granted.
Advice of Right to Take a Voluntary Dismissal without
as petitioner is now proceeding without the assistance of an
attorney, the Court finds, under the general guidance of
Castro v. United States, 540 U.S. 375 (2003), that
it is appropriate to advise petitioner concerning the
consequences of having his Petition resolved on the merits
and alternatives to a merits disposition.
petitioner is advised that if the Court decides the
government's Motion to Dismiss in a manner unfavorable to
him, such a resolution would be a decision on the merits,
making any future petition a “second or
successive” petition. Before filing a second or
successive petition in this Court, petitioner would be
required to obtain permission from the Court of Appeals.
petitioner is advised that because the government has not
filed a Response to the petition, he has the right to take a
Voluntary Dismissal of his petition without prejudice under
Rule 41, Federal Rules of Civil Procedure. A Voluntary
Dismissal may be taken by petitioner filing a Notice of
Voluntary Dismissal with this Court. The filing of a Notice
of Voluntary Dismissal would terminate this case without the
Court reaching the merits of the Petition or the
government's Motion to Dismiss. See Jackson v. United
States, 245 F.App'x. 258 (4th Cir. 2007). Petitioner
is cautioned that if he has previously dismissed any such
claim, such a voluntary dismissal would operate as an
adjudication on the merits.
in making such determination, petitioner should consider that
the law imposes a one year statute of limitations on the
right to bring a motion pursuant to §2255(f).
THEREFORE, ORDERED that court-appointed counsel's amended
Motion to Withdraw as Counsel (#10) and Motion to Seal (#11)
are GRANTED, the Amended Motion to Withdraw (#10) is SEALED
and, for good cause shown, counsel for petitioner is relieved
from further representation of petitioner in this matter.
FURTHER ORDERED that the petitioner is allowed 30 days from
the issuance of this Order to file a Response to ...