Descent v. U.S.

Full title: SERGES JACQUES DESCENT, Petitioner v. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, M.D. Florida, Tampa Division

Date published: Apr 28, 2006

Case No. 8:03-CV-2658-T-30TBM, No. 8:00-CR-186-T-30TBM (M.D. Fla. Apr. 28, 2006)

Opinion

Case No. 8:03-CV-2658-T-30TBM, No. 8:00-CR-186-T-30TBM.

April 28, 2006

ORDER

JAMES MOODY JR., District Judge

This matter comes before the Court for consideration of Petitioner's Motion to Withdraw Amended Section 2255 Motion Filed Feb. 19, 2004 [and] Motion for an Order Closing the Instant Case (Dkt. 30). Rule 41 provides, in pertinent part, that "an action may be dismissed by the [petitioner] without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment." Rule 41(a)(1), Fed.R.Civ.P.

A responsive pleading has, however, been filed in these proceedings. Accordingly, Petitioner must secure leave of the Court to dismiss his § 2255 motion. See Fed.R.Civ.P. 41(a)(2) ("[A]n action shall not be dismissed at the [petitioner's] instance save upon order of the court and upon such terms and conditions as the court deems proper.").

Petitioner states that he has been informed that he is eligible to apply for a "treaty transfer" under a bilateral agreement between the United States and Canada. See Treaty Between the United States of America and Canada on the Execution of Penal Sentences, 30 U.S.T. 6273, T.I.A.S. No. 9552 (July 19, 1977); 18 U.S.C. § 4100- 4115. Petitioner states that he has been advised, however, that if he has anything pending in this case, his application for a treaty transfer will be automatically denied. Thus, Petitioner requests leave to withdraw his amended § 2255 motion and entry of an order closing this case. The Court finds that good cause exists to grant Petitioner's motion pursuant to Fed.R.Civ.P. 41(a)(2).

Accordingly, the Court ORDERS that:

1. The Motion to Withdraw Amended Section 2255 Motion Filed Feb. 19, 2004 [and] Motion for an Order Closing the Instant Case (Dkt. 30) are GRANTED. Petitioner's amended motion to vacate, set aside or correct an allegedly illegal sentence (CV Dkt. 10) is DISMISSED pursuant to Fed.R.Civ.P. 41(a)(2).¹

1 The dismissal under Fed.R.Civ.P. 41(a)(2) does not excuse Petitioner from the one-year period of limitation for filing a motion for collateral relief under 28 U.S.C. § 2255.

2. The Clerk shall enter judgment against Petitioner, terminate any pending motions, and close this case.

DONE and ORDERED