Opinion
CV 116-094
08-31-2016
TERRY CARTER, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.
(Formerly CR 107-076)
ORDER
Petitioner, an inmate at FCI Butner in North Carolina, filed with this Court a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Upon initial review as required by Rule 4 of the Rules Governing Section 2255 Proceedings, the Court recommended Petitioner's motion be dismissed. (Doc. no. 2.) In lieu of objections, Petitioner filed a motion to voluntarily dismiss his § 2255 motion without prejudice. (Doc. no. 4.)
Petitioner may voluntarily dismiss his motion pursuant to Fed. R. Civ. P. 41(a)(1) because Respondent has not filed an answer or motion for summary judgment in this case. This Court and other courts have approved the practice of dismissing § 2255 actions without prejudice. See, e.g., Cooks v. United States, CV 114-091, doc. no. 10 (S.D. Ga. Oct. 2, 2014); McGee v. United States, CV 111-192, doc. no. 10 (S.D. Ga. Aug. 17, 2012); see also Weeks v. United States, 382 F. App'x 845, 850 (11th Cir. 2010) (noting dismissal of § 2255 motion without prejudice). Therefore, the Court finds it appropriate to dismiss the case pursuant to Petitioner's motion.
Under Rule 12 of the Rules Governing Section 2255 Cases, "[t]he Federal Rules of Civil Procedure . . . , to the extent they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules." --------
However, Petitioner should note that, while a subsequent § 2255 motion will not be barred purely by virtue of the dismissal of this action, any future habeas petition and/or § 2255 motion will be subject to all statutory provisions applicable to such actions including the Antiterrorism and Effective Death Penalty Act of 1996. See 28 U.S.C. §§ 2244 & 2255. Accordingly, the Court GRANTS Petitioner's motion to dismiss, (doc. no. 4), DENIES AS MOOT Petitioner's motion to appoint counsel (CR107-076, doc. no. 44), DISMISSES this case without prejudice, DIRECTS the CLERK to TERMINATE all pending motions and deadlines, and CLOSES this case.
SO ORDERED this 31st day of August, 2016, at Augusta, Georgia.
/s/_________
BRIAN K. EPPS
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA