Opinion
C/A 1:22-1011-TMC-SVH
08-26-2022
Jamie Capalbo, Petitioner, v. Warden, FCI Williamsburg, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge.
Jamie Capalbo (“Petitioner”) is an inmate at Federal Correctional Institution in Williamsburg, South Carolina, who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion to dismiss [ECF No. 15]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 17]. Petitioner did not file a response, but filed a motion to place his petition in abeyance [ECF No. 21].
Also before the court are Respondent's motion to seal exhibit A to Respondent's motion to dismiss [ECF No. 16], as well as Petitioner's motion to order Respondent to supply him with a copy of Respondent's “Roseboro Order.” [ECF No. 19; see also ECF No. 20 (Respondent representing that the requested documents now have been sent to Petitioner twice)].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge dismiss the petition without prejudice.
I. Factual and Procedural Background
In March 2022, Petitioner filed a petition for a writ of habeas corpus challenging his 180-month sentence for a drug distribution conspiracy and being a felon in possession of a firearm. [ECF No. 1]. Petitioner argues that “his Florida prior conviction for aggravated assault does not support his designation and 180-month sentence under the Armed Career Criminal Act (“ACCA”).” [ECF No. 1-1 at 1 (citing Borden v. United States, 141 S.Ct. 1817 (2021), Somers v. United States, 15 F.4th 1049, 1051 (11th Cir. 2021))].
Respondent filed a motion to dismiss and memorandum in support. [ECF Nos. 15, 15-1]. Petitioner has now moved to place his petition in abeyance pending resolution by the United States Supreme Court of Jones v. Hendrix, No. 21-857, and resolution by the Florida Supreme Court of Somers v. United States, No. SC21-1407. [ECF No. 21]. In the alternative, he requests to voluntarily dismiss his petition. Id. Respondent opposes Petitioner's motion to place this matter in abeyance, but does not object to Petitioner's request to dismiss his petition.
II. Discussion
In his opposition to Petitioner's motion to place petition in abeyance, Respondent argues as follows:
Respondent opposes a stay pending resolution by the United States Supreme Court of Jones v. Hendrix, No. 21-851. The Court granted certiorari to resolve the scope of the savings clause in 28 U.S.C. § 2255(e) where a claim is based on retroactive circuit precedent construing the statute of conviction. Jones v. Hendrix, 142 S.Ct. 2706 (2022). Capalbo's claim does not rely on a retroactive change in the law. See ECF No. 15-1 at 6-8. The resolution of Jones therefore will not affect Capalbo's habeas petition.
Respondent also opposes a stay pending resolution by the Florida Supreme Court of Somers v. United States, No. SC21-1407. As explained in Respondent's Memorandum in Support of the Motion to Dismiss, Capalbo's hope that the Florida Supreme Court will rule in a manner that could support his habeas claim, and that his circuit of conviction will then extend Somers to Capalbo's circumstances and determine that holding is retroactively applicable on collateral review, is too speculative to warrant the indefinite abeyance of a matter over which the Court lacks jurisdiction. See ECF No. 15-1 at 8. Capalbo's request for an abeyance should be denied.[ECF No. 22 at 1-2]. Petitioner did not file a reply and thus has not addressed these arguments.
Respondent does not object to Petitioner's request to dismiss his petition without prejudice. Fed.R.Civ.P. 41(a)(2) requires a court order to dismiss an action at the plaintiff's request after the opposing party has responded. “It is well-settled that a plaintiff's motion under Rule 41(a)(2) for dismissal without prejudice should not be denied absent substantial prejudice to the defendant.” Craig v. Warden Leiber Corr. Inst., C/A No. 6:19-624-JFA-KFM, 2020 WL 2842167, at *2 (D.S.C. Mar. 2, 2020) (cleaned up and citations omitted), report and recommendation adopted, C/A No. 6:19-624-JFA-KFM, 2020 WL 1329393 (D.S.C. Mar. 23, 2020). In determining whether to dismiss an action with or without prejudice under the rule, “a district court should consider factors such as the opposing party's effort and expense in preparing for trial, excessive delay and lack of diligence on the part of the movant, and insufficient explanation of the need for a voluntary dismissal, as well as the present stage of litigation.” Id. (citations omitted).
“The Rules Governing Section 2254 [proceedings] are applicable to habeas actions brought under § 2241.” Thompson v. Lexington, S.C., C/A No. 5:21-3778-HMH-KDW, 2021 WL 6206406, at *1 (D.S.C. Dec. 16, 2021), report and recommendation adopted sub nom. Thompson v. Warden of Fed. Corr. Complex, C/A No. 5:21-3778-HMH-KDW, 2022 WL 23646 (D.S.C. Jan. 3, 2022). “Rule 12 of the Rules Governing 2254 and 2255 Cases provides that all of ‘[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.'” Rios v. Williams, C/A No. 1:19-CV-02329-SAL, 2020 WL 3958262, at *3 (D.S.C. July 13, 2020).
Respondent's motion to dismiss seeks dismissal of the petition without prejudice, albeit on jurisdictional grounds. Respondent therefore does not object to a dismissal without prejudice under Fed.R.Civ.P. 41.
Upon consideration of the above, the undersigned declines to recommend holding the instant petition in abeyance for an unspecified period and, instead, recommends the district judge dismiss the petition without prejudice pursuant to Fed.R.Civ.P. 41(a)(2).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Petitioner's motion to dismiss his petition without prejudice, [ECF No. 21], rendering all other pending motions moot [ECF Nos. 15, 16, 19].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).