Opinion
CV 116-072
06-28-2016
REGINA M. PREETORIUS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
(Formerly CR 112-204)
ORDER
Petitioner, an inmate at the federal correctional institution in Aliceville, Alabama, filed with this Court a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence. On June 10, 2016, the Court directed Respondent to file an answer or response within sixty days. (Doc. no. 3.) On June 27, 2016, prior to the filing of any response by Respondent, Petitioner filed a motion to voluntarily dismiss, without prejudice, her § 2255 motion. (Doc. no. 4.)
Petitioner may voluntarily dismiss her 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 that it is 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 petition for a writ of habeas corpus and/or § 2255 motion that she 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 motion to dismiss, (doc. no. 4), DISMISSES this case without prejudice, DIRECTS the CLERK to TERMINATE all pending motions and deadlines, and CLOSES this case.
SO ORDERED this 28th day of June, 2016, at Augusta, Georgia.
/s/_________
BRIAN K. EPPS
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA