Stukes v. USA
Filing
10
ORDER granting 8 Motion to Withdraw as Attorney. Attorney Jared Paul Martin terminated; granting 9 Motion to Seal. Signed by Chief Judge Frank D. Whitney on 5/18/17. (clc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-401-FDW
(3:13-cr-73-FDW-1)
ANTONIO STUKES,
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
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Respondent.
)
____________________________________)
ORDER
THIS MATTER is before the Court upon court-appointed counsel’s Amended Motion to
Withdraw as Counsel (Doc. No. 8) and Motion to Seal (Doc. No. 9). The Court will grant the
Motion to Seal the Amended Motion to Withdraw because the latter discloses privileged
attorney-client communications. Additionally, the Court finds that, in accordance with the
Western District of North Carolina’s Local Civil Rule 83.1(f), counsel has shown good cause to
withdraw. Accordingly, the Court will grant the Amended Motion to Withdraw as Counsel.
The Government has filed a Motion to Dismiss Petitioner’s Motion to Vacate, Set Aside
or Correct Sentence, 28 U.S.C. § 2255. (Doc. No. 5.) The Government contends Petitioner’s
claim that his sentence under the career-offender provision of the United States Sentencing
Guidelines is invalid under United States v. Johnson, 135 S. Ct. 2551 (2015), is foreclosed by the
Supreme Court’s more recent decision in Beckles v. United States, 137 S. Ct. 886 (2017). In
Beckles, the Supreme Court held that the “the advisory [Sentencing] Guidelines are not subject
to vagueness challenges under the Due Process Clause.” Id. at 890. As Petitioner is now
proceeding without counsel, the Court shall provide him notice of his rights and obligations
related to the Government’s Motion to Dismiss and of his opportunity to take a voluntary
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dismissal without prejudice.
I.
Roseboro Notice
Petitioner may respond to the Government’s Motion to Dismiss, if he so wishes. See
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Any response must be filed with the Court
within 30 days of the issuance of this Order. Petitioner must also mail a copy of his response to
counsel for the Government. Failure to respond or take other action (as discussed below) may
result in the Court granting the Government’s Motion to Dismiss without further notice.
II.
Voluntary Dismissal
Because the Government has filed a motion to dismiss rather than a response to the
Motion to Vacate, Petitioner may voluntarily dismiss his § 2255 Motion without prejudice by
filing a Notice of Voluntary Dismissal in this Court under Rule 41 of the Federal Rules of Civil
Procedure.1 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).
An unfavorable decision on the merits of the Motion to Vacate or Motion to Dismiss
would mean any later attempt by Petitioner to obtain habeas relief in federal district court would
be considered a “second or successive” habeas action. A petitioner is prohibited from filing a
1
Rule 41(a)(1), Fed. R. Civ. P., provides as follows:
(A) Withhout 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) 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
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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“second or “successive” habeas action in federal district court without first obtaining permission
from the Court of Appeals. See 28 U.S.C. §§ 2244(b)(3)(A) and 2255(h). Once this Court enters
a judgment in this case, Petitioner will no longer have the option to file a Notice of Voluntary
Dismissal.
III.
Order
IT IS HEREBY ORDERED that:
1. The Amended Motion to Withdraw as Counsel (Doc. No. 8) is GRANTED;
2. The Motion to Seal the Amended Motion to Withdraw as Counsel (Doc. No. 9) is
GRANTED;
3. Counsel is relieved from further representation of Petitioner in this action;
4. Petitioner shall have 30 days from entrance of this Order to file a response to the
Government’s Motion to Dismiss; and
5. The Clerk of Court is directed to mail a copy of the Government’s Motion to Dismiss
(Doc. No. 5), along with a copy of this Order, to Petitioner at his place of
confinement.
Signed: May 18, 2017
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