Carter v. United States of America

Filing 5

ORDER granting 4 Motion to Dismiss, dismissing this case without prejudice, directing the Clerk to terminate all pending motions and deadlines, and close this case. Signed by Magistrate Judge Brian K. Epps on 08/31/2016. (thb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
TERRY CARTER, JR.,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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CV 116-094
(Formerly CR 107-076)

ORDER
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Petitioner, an inmate at FCI Butner in North Carolina, filed with this Court a motion
under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Upon initial review as
required by Rule 4 of the Rules Governing Section 2255 Proceedings, the Court
recommended Petitioner’s motion be dismissed.

(Doc. no. 2.)

In lieu of objections,

Petitioner filed a motion to voluntarily dismiss his § 2255 motion without prejudice. (Doc. no.
4.)
Petitioner may voluntarily dismiss his 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. 1 This
Court and other courts have approved the practice of dismissing § 2255 actions without

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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.”

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 it appropriate to dismiss the case pursuant to
Petitioner’s motion.
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 habeas petition and/or § 2255
motion will be subject to all statutory provisions applicable to such actions including 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), DENIES AS
MOOT Petitioner’s motion to appoint counsel (CR107-076, doc. no. 44), DISMISSES this case
without prejudice, DIRECTS the CLERK to TERMINATE all pending motions and
deadlines, and CLOSES this case.
SO ORDERED this 31st day of August, 2016, at Augusta, Georgia.

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