Whitaker v. USA

Filing 10

ORDER granting 8 Motion to Withdraw as Attorney. Attorney Caleb Hill Newman terminated; granting 9 Motion to Seal. the petitioner is allowed 30 days from the issuance of this Order to file a Response to the Gvt'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
DOCKET NO. 3:16-cv-00352-MOC
JERMAINE WHITAKER,

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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

ORDER

THIS MATTER is before the court on court-appointed counsel’s Amended Motion to
Withdraw as Counsel (#8) and Motion to Seal (#9). In accordance with Local Civil Rule 6.1, the
Motion to Seal will be granted as the underlying amended motion discusses privileged attorneyclient communications. Having review the amended motion and the attachments thereto, the court
finds that counsel has shown good cause to withdraw, all in accordance with the Court’s earlier
Order and Local Civil Rule 83.1(f). As petitioner is now proceeding pro se and there is a pending
Motion to Dismiss this action, he is advised as follows:
ROSEBORO/CASTRO NOTICE
The government has filed a Motion to Dismiss. The government contends, among other
things, that the underlying claim is without merit under a recent decision of the United States
Supreme Court in Beckles v. United States, ___ U.S. ___, 137 S.Ct. 886 (March 6, 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.

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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
summarily granted.
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 Petition resolved on
the merits and alternatives to a merits disposition.
First, petitioner is advised that if the Court decides the government’s Motion to Dismiss in
a manner unfavorable to him, such a resolution would be a decision on the merits, making any
future petition 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, petitioner is advised that because the government has not filed a Response to the
petition, he has the right to take a Voluntary Dismissal of his petition without prejudice under Rule
41, Federal Rules of Civil Procedure.1 A Voluntary Dismissal may be taken by petitioner filing a

1 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.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But

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Notice of Voluntary Dismissal with this Court. The filing of a Notice of Voluntary Dismissal
would terminate this case without the Court reaching the merits of the Petition 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 any such claim, such a voluntary dismissal would
operate as an adjudication on the merits.
Third, in making such determination, petitioner should consider that the law imposes a one
year statute of limitations on the right to bring a motion pursuant to §2255(f).

ORDER
IT IS, THEREFORE, ORDERED that court-appointed counsel’s amended Motion to
Withdraw as Counsel (#8) and Motion to Seal (#9) are GRANTED, the Amended Motion to
Withdraw (#8) is SEALED and, for good cause shown, counsel for petitioner is relieved from
further representation of petitioner in this matter.
IT IS FURTHER ORDERED that the petitioner is allowed 30 days from the issuance of
this Order to file a Response to the government’s Motion to Dismiss. A copy of this Order shall
be mailed to petitioner at his place of confinement.

Signed: May 18, 2017

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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