Brown v. USA

Filing 11

ORDER granting 9 Motion to Withdraw as Attorney. Attorney Caleb Hill Newman terminated; granting 10 Motion to Seal. The Petitioner is allowed 30 days from the issuance of this Order to file a response to the Government's Motion to Dismiss. Signed by District Judge Max O. Cogburn, Jr on 5/18/2017. (chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-00332-MOC
(3:08-cr-00131-MOC-3)
TORRIE BROWN,

)
)
Petitioner
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
____________________________________)

ORDER

THIS MATTER is before the Court on court-appointed counsel’s Amended Motion to
Withdraw as Counsel (#9) and Motion to Seal (#10). In accordance with Local Civil Rule 6.1,
the Motion to Seal will be granted as the underlying Amended Motion discusses privileged
attorney-client communications. Having reviewed the Amended Motion, the Court finds that
counsel has shown good cause to withdraw, in accordance with the Court’s earlier Order (#8)
and Local Civil Rule 83.1(f).
The Government has filed a Motion to Dismiss Petitioner’s Motion to Vacate, Set Aside
or Correct Sentence, 28 U.S.C. § 2255. The Government contends, among other things, that the
underlying claim raised in the Motion to Vacate is without merit under a recent decision of the
United States Supreme Court in Beckles v. United States, 137 S. Ct. 886 (2017). As Petitioner is
now proceeding without counsel, he will be advised of his obligations in responding to the
Motion to Dismiss and also advised of his opportunity to take a voluntary dismissal without
prejudice.
ROSEBORO/CASTRO NOTICE

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I.

Advice of Opportunity to File a Response

In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner is
advised that he has an opportunity to respond to the Government’s Motion to Dismiss. Any
response must be in writing and filed with the Court within 30 days of the issuance of this Order.
Petitioner must also mail a copy of that response to counsel for the Government. Failure to
respond or take further action (as discussed below) may result in the Government’s Motion to
Dismiss being granted without further notice.
II.

Advice of Right to Take a Voluntary Dismissal without Prejudice

Inasmuch as Petitioner is now proceeding without the assistance of an attorney, the Court
finds, under the general guidance of Castro v. United States, 540 U.S. 375 (2003), that it is
appropriate to advise Petitioner concerning the consequences of having his Motion to Vacate
resolved on the merits and alternatives to a merits disposition.
First, if the Court decides the Government’s Motion to Dismiss in a manner unfavorable
to Petitioner, such a resolution would be a decision on the merits, making any future motion to
vacate a “second or successive” petition. Before filing a second or successive petition in this
Court, Petitioner would be required to obtain permission from the Court of Appeals.
Second, because the Government has filed a motion to dismiss, rather than a response, to
the Motion to Vacate, Petitioner has the right to take a voluntary dismissal of his § 2255 Motion
without prejudice under Rule 41, Federal Rules of Civil Procedure.1 A voluntary dismissal may

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In relevant part, Rule 41(a)(1), Fed. R. Civ. P. provides as follows:
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable
federal statute, the plaintiff may dismiss an action without a court order by filing:
(i)

a notice of dismissal before the opposing party serves either an answer or a
motion for summary judgment; or

(ii)

a stipulation of dismissal signed by all parties who have appeared.

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be taken by Petitioner filing a Notice of Voluntary Dismissal with this Court. The filing of a
Notice of Voluntary Dismissal would end this case without the Court reaching the merits of the
Motion to Vacate or the Government’s Motion to Dismiss. See Jackson v. United States, 245 F.
App'x. 258 (4th Cir. 2007). Petitioner is cautioned that if he has previously dismissed a motion
to vacate, a voluntary dismissal in this case would operate as an adjudication on the merits.
Third, in determining whether to file a Notice of Voluntary Dismissal, Petitioner should
consider that the law imposes a one-year statute of limitations on the right to bring a motion
pursuant to §2255.
ORDER
IT IS, THEREFORE, ORDERED that court-appointed counsel’s Amended Motion to
Withdraw as Counsel (#9) and Motion to Seal (#10) are GRANTED, the Amended Motion to
Withdraw (#9) is SEALED, and for good cause shown, counsel is relieved from further
representation of Petitioner in this matter.
IT IS FURTHER ORDERED that Petitioner is allowed 30 days from the issuance of
this Order to file a response to the Government’s Motion to Dismiss. The Clerk of Court is
directed to mail a copy of the Government’s Motion to Dismiss (#6), along with a copy of this
Order, to Petitioner at his place of confinement.
Signed: May 18, 2017

(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But
if the plaintiff previously dismissed any federal- or state-court action based on or including the
same claim, a notice of dismissal operates as an adjudication on the merits.

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