United States District Court, W.D. Arkansas, Texarkana Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT U.S. MAGISTRATE JUDGE
the Court is the Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 filed by PATRICK
KELLAM (“Kellam”). ECF No. 29. The Motion was
referred for findings of fact, conclusions of law, and
recommendations for the disposition of the case. The United
States of America (hereinafter referred to as the
“Government”) has not responded to the Motion.
Kellam has requested his Motion be dismissed. ECF No. 32 The
Court has considered the entire record, and this matter is
ready for decision. For the reasons stated below, the Court
recommends the Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 29) be
DISMISSED without prejudice.
October 18, 2016, Kellam was sentenced to 72 months
imprisonment, 15 years of supervised release, and a $100
special assessment in connection with his conviction for
interstate transportation of child pornography in violation
of 18 U.S.C. §§ 2252(a)(1) & (b)(1). ECF No.
27. On October 19, 2017, Kellam filed a pro se 28
U.S.C. § 2255 Motion to Vacate with this Court
requesting that his sentence be vacated on the grounds that
he received ineffective assistance of counsel. ECF No. 29.
The Court appointed the Federal Defender to represent Kellam
on October 27, 2017. ECF No. 30. In that same Order the Court
directed the Government to file a Response to the Motion on
or before February 1, 2018. Prior to the Government's
Response being filed, Kellam, through counsel, filed his
Notice of Dismissal of 28 U.S.C. § 2255 Motion. ECF No.
32. Accordingly, the Government did not file a Response.
of the Rules Governing Section 2255 Proceedings provides that
the Federal Rules of Civil Procedure apply “to the
extent that they are not inconsistent with any statutory
provisions or these rules.” Kellam asserts in his
Notice of Dismissal: “After consultation with counsel,
Mr. Kellam has determined that he wishes to voluntarily
dismiss his Motion to Vacate” pursuant to Fed.R.Civ.P
41(a). ECF No. 32, ¶ 3. Rule 41(a) provides:
(a) Voluntary Dismissal (1) By the
(A) Without a Court Order. Subject to Rules
23(e), 23.1(c), 23.2, and 66 and any applicable federal
statute, the plaintiff may dismiss an action without a court
order by filing:
(i) a notice of dismissal before the
opposing party serves either an answer or a motion for
(ii) a stipulation of dismissal signed by
all parties who have appeared.
(B) Effect. Unless the notice or stipulation
states otherwise, the dismissal is without prejudice. But if
the plaintiff previously dismissed any federal-or state-court
action based on or including the same claim, a notice of
dismissal operates as an adjudication on the merits.
(2) By Court Order; Effect. Except as
provided in Rule 41(a)(1), an action may be dismissed at the
plaintiff's request only by court order, on terms that
the court considers proper. If a defendant has pleaded a
counterclaim before being served with the plaintiff's
motion to dismiss, the action may be dismissed over the
defendant's objection only if the counterclaim can remain
pending for independent adjudication.
Unless the order states otherwise, a dismissal under this
paragraph (2) is without prejudice.
while directed to respond on or before February 1, 2018, the
Government has elected not to do so in light of Kellam's
Notice of Dismissal. No answer or motion for summary judgment
been filed by the government. While the application of Rule
41(a) to a § 2255 proceeding is not crystal clear, Rule
41 does not appear inconsistent with the Rules Governing
Section 2255 Proceedings in this context. Further, the Court
has discretion to allow a dismissal if there is no prejudice
to the opposing party. See New York, C. & St. L.R.
Co. v. Vardaman, 181 F.2d 769, 770 (8th Cir.1950) (Court
has discretion to order a dismissal ...