United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr., United Stales District Judge
MATTER is before the Court on court-appointed counsel's
Amended Motion to Withdraw as Counsel (#9) and Motion to Seal
(#10). 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
reviewed the Amended Motion, the Court finds that counsel has
shown good cause to withdraw, in accordance with the
Court's earlier Order (#8) and Local Civil Rule 83.1(f).
Government has filed a Motion to Dismiss Petitioner's
Motion to Vacate, Set Aside or Correct Sentence, 28 U.S.C.
§ 2255. The Government contends, among other things,
that the underlying claim raised in the Motion to Vacate is
without merit under a recent decision of the United States
Supreme Court in Beckles v. United States, 137 S.Ct.
886 (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 without prejudice.
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 granted without further notice.
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 Motion to Vacate resolved on the
merits and alternatives to a merits disposition.
if the Court decides the Government's Motion to Dismiss
in a manner unfavorable to Petitioner, such a resolution
would be a decision on the merits, making any future motion
to vacate 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.
because the Government has filed a motion to dismiss, rather
than a response, to the Motion to Vacate, Petitioner has the
right to take a voluntary dismissal of his § 2255 Motion
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
end this case without the Court reaching the merits of the
Motion to Vacate 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 a motion to vacate, a voluntary
dismissal in this case would operate as an adjudication on
in determining whether to file a Notice of Voluntary
Dismissal, Petitioner should consider that the law imposes a
one-year statute of limitations on the right to bring a
motion pursuant to §2255.
THEREFORE, ORDERED that court-appointed counsel's Amended
Motion to Withdraw as Counsel (#9) and Motion to Seal (#10)
are GRANTED, the Amended Motion to Withdraw (#9) is SEALED,
and for good cause shown, counsel is relieved from further
representation of Petitioner in this matter.
FURTHER ORDERED that Petitioner is allowed 30 days from the
issuance of this Order to file a response to the
Government's Motion to Dismiss. The Clerk of Court is
directed to mail a copy of the Government's Motion to
Dismiss (#6), ...