Opinion
CV 120-179 CR 109-060
05-16-2022
ANTONY DAVILA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
Petitioner, previously incarcerated at the federal correctional institution in Jesup, Georgia, filed with this Court a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. On April 15, 2022, the Magistrate Judge issued a Report and Recommendation, (doc. no. 28), recommending denial of Petitioner's motion and directed objections to be filed by May 2, 2022, (doc. no. 29). On May 3, 2022, Petitioner filed a notice of release from incarceration and requests to voluntarily dismiss his § 2255 motion. (Doc. no. 30.)
The Court may grant Petitioner's request to voluntarily dismiss his motion pursuant to Fed.R.Civ.P. 41(a)(2). 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 Fed.Appx. 845, 850 (11th Cir. 2010) (noting dismissal of § 2255 motion without prejudice). Therefore, the Court finds that it is appropriate to dismiss the case pursuant to Petitioner's request.
'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 petition for a writ of habeas corpus and/or § 2255 motion that he files will be subject to all statutory provisions applicable to such actions, including those enacted under the Antiterrorism and Effective Death Penalty Act of 1996. See 28 U.S.C. §§ 2244 & 2255. Accordingly, the Court GRANTS Petitioner's request to voluntarily dismiss, (doc. no. 30), DISMISSES this case without prejudice, DIRECTS the CLERK to TERMINATE all pending motions and deadlines, and CLOSES this case.
SO ORDERED.