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United States v. Kellam

United States District Court, W.D. Arkansas, Texarkana Division

March 13, 2018

UNITED STATES OF AMERICA RESPONDENT
v.
PATRICK KELLAM MOVANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE

         Before 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.

         1. Background:

         On 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.

         2. Discussion:

         Rule 12 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 Plaintiff.
(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 summary judgment
(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.

         Here, 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 ...


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