Gauthier v. USA

Filing 6

ORDER: The court gives Gauthier fourteen days from the date of this order to file a notice that he either (1) withdraws his petition, despite the lack of a determination as to whether another petition will count as second or successive under § 2255(h), or (2) that he withdraws his motion to withdraw and provides a response to the government's motion to dismiss. So Ordered by Judge Steven J. McAuliffe. Compliance Deadline set for 5/23/2024.(lw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Stefan Gauthier
v.

Case No. 23-cv-507-SM-TSM
Opinion No. 2024 DNH 038

United States of America

O R D E R
Stefan Gauthier, who is a prisoner and proceeding pro se,
filed a petition, pursuant to 28 U.S.C. § 2255, to vacate his
sentence on two counts of possession with intent to distribute
methamphetamine.

United States v. Gauthier, 19-cr-08-SM (D.N.H.

Aug. 27, 2021) (aff’d 53 F.4th 674 (1st Cir. 2022)).

The

government filed a response in which it challenged each of
Gauthier’s claims on the merits.

Gauthier then moved to

withdraw his petition, noting that he sought to avoid having the
withdrawn petition count for purposes of a second or successive
petition under 28 U.S.C. § 2255(h).

The government filed a

response, acknowledging Gauthier’s right to withdraw his
petition but not agreeing that the withdrawn petition would not
count as a first petition for purposes of § 2255(h).
For the following reasons, the court gives Gauthier an
opportunity to withdraw his motion before granting the motion to
withdraw his petition (doc. no. 4).

Discussion
Gauthier’s motion raises questions about the effect of a
voluntary withdrawal of a § 2255 petition.

Gauthier asks the

court to dismiss the petition in a manner that will avoid the
restrictions imposed by § 2255(h).

The government, in essence,

argues that the second or successive determination must be made
if and when Gauthier files another petition that would implicate
the restrictions under § 2255(h).
An action may be voluntarily dismissed after the opposing
party has responded only by order of the court and upon “terms
that the court considers proper.”

Fed. R. Civ. P. 41(a)(2).

Voluntary dismissal by court order is generally without
prejudice.

Id.

The Federal Rules of Civil Procedure, however,

apply to § 2255 proceedings only to the extent that they are not
inconsistent with § 2255.

Rule 12, Rules Governing § 2255

Proceedings for the United States District Courts.

For that

reason, Rule 41 cannot be applied in § 2255 proceedings to block
the application of § 2255(h).

Williams v. United States, 91

F.4th 1256, 1259 (8th Cir. 2024).
Section 2255(h) “severely restricts the circumstances under
which individuals may file multiple petitions.”

Case No. 19-cv-

184-JAW, Mitchell v. United States, 2024 WL 326784, at *5 (D.
Me. Jan. 29, 2024).

Under § 2255(h), a petitioner must seek
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certification from the appropriate court of appeals before
filing a second or successive petition.

See 28 U.S.C. § 2244.

To obtain certification, the petition must contain either newly
discovered evidence or a new and retroactive rule of
constitutional law that was not available previously. § 2255(h).
Section 2255 does not define “second or successive.”

United

States v. Barrett, 178 F.3d 34, 42-43 (1st Cir. 1999).
Generally, a subsequently filed petition is not second or
successive, for purposes of § 2255(h), “if the earlier petition
terminated without a judgment on the merits.”
States, 129 F.3d 54, 60 (1st Cir. 1997).

Pratt v. United

Although the First

Circuit Court of Appeals has not addressed the issue, other
courts recognize an exception to the general rule when a
petitioner voluntarily withdraws an initial § 2255 petition
after the government has filed a response that demonstrates the
futility of the claims in the petition.

See, e.g., Williams, 91

F.4th at 1258-59 (citing cases); United States v. Raymond, 815
F. App’x 144, 147 (9th Cir. 2020); United States v. Rejda, 790
F. App’x 900, 905 (10th Cir. 2019); In re Moore, 735 F. App’x
883, 887 (6th Cir. 2018); Thai v. United States, 391 F.3d 491,
495 (2d Cir. 2004); Potts v. United States, 210 F.3d 770, 770-71
(7th Cir. 2000); Bradley v. United States, Case. No. 23-cv-1069FL, 2024 WL 1025458, at *3 (E.D.N.C. Jan. 10, 2024) (citing
cases); McPherson v. United States, Case Nos. 19-cv-8635 & 193

cv-11036, 2020 WL 2765914, at *3-*4 (S.D.N.Y. May 28, 2020)
(citing cases); Boulier v. United States, Case No. 13-cr-132JAW, 2020 WL 1930482, at *2 (D. Me. Apr. 21, 2020).

As the

courts held in the above cited cases, the effect of a
voluntarily withdrawn petition, for purposes of § 2255(h),
depends on the circumstances that existed when the petition was
withdrawn, including whether the petitioner was represented by
counsel and his reasons for withdrawing the petition.
Here, the question of a second or successive petition under
§ 2255(h) is not expressly before the court--Gauthier has not
filed another petition that might trigger the § 2255(h)
requirements.

Whether the circumstances and reasons for

Gauthier’s withdrawing the petition would weigh in favor of
counting the current petition for purposes of § 2255(h) must be
decided if and when Gauthier files another petition. 1

Dismissal

of the current petition without prejudice, as provided by Rule
41(a)(2), resolves only that petition and does not determine the
petition’s status in the context of § 2255(h).

See, e.g., In re

Moore, 735 F. App’x at 887; see also Williams, 91 F.4th at 1259.

The Tenth Circuit has suggested that the counting decision
should be made when a petition is voluntarily dismissed. See
Rejda, 790 F. App’x at 904-05. The court declines to follow
that guidance, which is not binding on this court.
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Conclusion
For the foregoing reasons, Gauthier’s motion to withdraw
the petition (doc. no. 4) would ordinarily be granted, but as is
discussed above, that determination does not decide any issue
that may arise with respect to the application of § 2255(h) if
Gauthier files another § 2255 petition.
In light of that result and in recognition of Gauthier’s
pro se status, the court gives Gauthier fourteen days from the
date of this order to file a notice that he either (1) withdraws
his petition, despite the lack of a determination as to whether
another petition will count as second or successive under
§ 2255(h), or (2) that he withdraws his motion to withdraw and
provides a response to the government’s motion to dismiss.
If Gauthier does not file the notice, the court will enter
judgment based on Gauthier’s motion to withdraw as is provided
in this order.
SO ORDERED.
______________________________
Steven J. McAuliffe
United States District Judge
May 9, 2024
cc:

Stefan Gauthier, pro se
John J. Kennedy, AUSA

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