United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge
MATTER is before the Court upon court-appointed
counsel's Amended Motion to Withdraw as Counsel (Doc. No.
8) and Motion to Seal (Doc. No. 9). The Court will grant the
Motion to Seal the Amended Motion to Withdraw because the
latter discloses privileged attorney-client communications.
Additionally, the Court finds that, in accordance with the
Western District of North Carolina's Local Civil Rule
83.1(f), counsel has shown good cause to withdraw.
Accordingly, the Court will grant the Amended Motion to
Withdraw as Counsel.
Government has filed a Motion to Dismiss Petitioner's
Motion to Vacate, Set Aside or Correct Sentence, 28 U.S.C.
§ 2255. (Doc. No. 5.) The Government contends
Petitioner's claim that his sentence under the
career-offender provision of the United States Sentencing
Guidelines is invalid under United States v.
Johnson, 135 S.Ct. 2551 (2015), is foreclosed by the
Supreme Court's more recent decision in Beckles v.
United States, 137 S.Ct. 886 (2017). In
Beckles, the Supreme Court held that the “the
advisory [Sentencing] Guidelines are not subject to vagueness
challenges under the Due Process Clause.” Id.
at 890. As Petitioner is now proceeding without counsel, the
Court shall provide him notice of his rights and obligations
related to the Government's Motion to Dismiss and of his
opportunity to take a voluntary dismissal without prejudice.
may respond to the Government's Motion to Dismiss, if he
so wishes. See Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975). Any response must be filed with the Court
within 30 days of the issuance of this Order. Petitioner must
also mail a copy of his response to counsel for the
Government. Failure to respond or take other action (as
discussed below) may result in the Court granting the
Government's Motion to Dismiss without further notice.
the Government has filed a motion to dismiss rather than a
response to the Motion to Vacate, Petitioner may voluntarily
dismiss his § 2255 Motion without prejudice by filing a
Notice of Voluntary Dismissal in this Court under Rule 41 of
the Federal Rules of Civil Procedure. 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).
unfavorable decision on the merits of the Motion to Vacate or
Motion to Dismiss would mean any later attempt by Petitioner
to obtain habeas relief in federal district court would be
considered a “second or successive” habeas
action. A petitioner is prohibited from filing a
“second or “successive” habeas action in
federal district court without first obtaining permission
from the Court of Appeals. See 28 U.S.C.
§§ 2244(b)(3)(A) and 2255(h). Once this Court
enters a judgment in this case, Petitioner will no longer
have the option to file a Notice of Voluntary Dismissal.
IS HEREBY ORDERED that:
1. The Amended Motion to Withdraw as Counsel (Doc. No. 8) is
2. The Motion to Seal the Amended Motion to Withdraw as
Counsel (Doc. No. 9) is GRANTED;
3. Counsel is relieved from further representation of
Petitioner in this action;
4. Petitioner shall have 30 days from entrance of this Order
to file a response to the Government's ...