Opinion
CIV. ACT. 1:22-cv-179-TFM-B CRIM ACT. 1:15-cr-94-TFM-B
07-26-2022
TOMMY NGOC NGUYEN, Petitioner, v. UNITED STATES OF AMERICA Respondent.
MEMORANDUM OPINION AND ORDER
TERRY F. MOORER UNITED STATES DISTRICT JUDGE
On June 16, 2022, the Magistrate Judge entered a report and recommendation which recommends Petitioner's motion seeking to withdraw his § 2255 motion (Doc. 124) be granted and the petition brought pursuant to 28 U.S.C. § 2255 (Doc. 120) be terminated as withdrawn. See Doc. 125. No objections were filed and the mail was returned as undeliverable.
The undersigned ultimately agrees that Nguyen is entitled to voluntarily withdraw his § 2255 petition. However, the recommendation cites to both Fed.R.Civ.P. 41(a)(1)(A)(i) and Fed.R.Civ.P. 41(a)(2), but does not make it entirely clear under which provision it recommends this action be dismissed. Therefore, the Court provides this additional analysis for clarity.
The Court has no authority to grant or deny a dismissal under Fed.R.Civ.P. 41(a)(1)(A) because it is self-effectuating. See Estate of West v. Smith, 9 F.4th 1361, 1367-1368 (11th Cir. 2021). Any such order would be a legal nullity. Id. at 1368. However, it is not entirely clear that Plaintiff intended to file a notice of dismissal under Rule 41(a)(1)(A)(i) when he filed his “Affidavit of Truth Motion to Withdraw” (Doc. 124). As such, the Court construes the request to withdraw (Doc. 124) as a motion to dismiss under Fed.R.Civ.P. 41(a)(2) which permits dismissal of an action at the plaintiff's request when Rule 41(a)(1) does not apply. The Court GRANTS the voluntary motion to dismiss and will dismiss this action without prejudice.
Accordingly, after due and proper consideration of all portions of this file deemed relevant to the issues raised, and there having been no objections filed, the Report and Recommendation of the Magistrate Judge is ADOPTED as modified. Petitioner's request to voluntarily withdraw/dismiss his action (Doc. 124) is GRANTED and this action (Doc. 120) is DISMISSED without prejudice.
The Clerk of Court is DIRECTED to close this case.
DONE and ORDERED