govinfo:USCOURTS-tned-3_14-cr-00089-3

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
DAVID TRENTHAM, )
)
Petitioner, )
)
v. ) Nos. 3:14-CR-89-PLR-HBG-17
) 3:16-CV-437-PLR
UNITED STATES OF AMERICA, )
)
Respondent. )
MEMORANDUM OPINION
Before the Court are Petitioner’s notice of voluntary dismissal under Federal Rule of Civil 
Procedure 41(a)(1)(A)(i) [Doc. 559], and the United States’ motion to deny and dismiss that same 
action with prejudice in light of Beckles v. United States, 137 S. Ct. 886 (2017) [Doc. 560].
Petitioner filed the underlying motion to vacate, set aside, or correct his sentence under 28 
U.S.C. § 2255 on June 20, 2016 [Docs. 503, 511].1 In it, he: (1) challenges his enhancement under 
Section 4B1.1 of the United States Sentencing Guidelines based on Johnson v. United States, 135 
S. Ct. 2551 (2015), which held that the residual provision of the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague [Docs. 511, 523, 531 (suggesting that
his sentence is no longer valid because the Guide lines residual provision is equally vague)]; and 
(2) argues that trial counsel rendered ineffective assistance for failing to object to that career 
1 On February 11, 2016, this Court appointed Federal Defender Services of Eastern 
Tennessee (FDSET) for the limited purpose of reviewing the case to determine whether or not 
Petitioner is eligible for collateral relief based on Johnson v. United States, 135 S. Ct. 2551 (2015). 
See E.D. Tenn. SO-16-02 (Feb. 11, 2016). Petitioner filed a pro se petition [Docs. 503, 511], and 
amended that petition shortly thereafter [Doc. 521]. Consistent with the Standing Order, FDSET 
filed two supplements in support of Johnson-based collateral relief [Docs. 523, 531]. PageID
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offender designation at the sentencing hearing [Doc. 521]. 2 On September 20, 2016, the United 
States requested that this Court “defer ruling” on the petition until the Supreme Court addressed 
the following issues: whether the guidelines were subject to void for vagueness attack and, if so, 
whether that “new rule” applied retroactively on collateral review [Doc. 525 (“[I]n the interests of 
justice, and in an effort to promote judicial ec onomy, the United States asks this Court to defer 
ruling on Petitioner’s pending § 2255 motion until the Supreme Court decides Beckles, after which 
the United States will file a supplemental response .”)]. This Court agreed that “a stay [was] 
appropriate under the circumstances,” stayed the case, and ordered that the parties “file a joint 
s t a t u s r e p o r t w i t h i n t h i r t y...d a y s o f [ t h e Beckles holding]” [Doc. 526]. 
On March 6, 2017, the Supreme Court held in Beckles that the United States Sentencing 
Guidelines are “not amenable to vagueness ch allenges.” 137 S.Ct. at 894. Two weeks later, this 
Court entered an Order (1) noting the holding in Beckles (2) instructing the parties to “file any 
2 The ACCA mandates a fifteen-year sentence for any felon who unlawfully possesses a 
firearm after having sustained three prior convic tions “for a violent felony or a serious drug 
offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The 
statute defines “violent felony” as “any crime punishable by imprisonment for a term exceeding 
one year” that (1) “has as an element the use, a ttempted use, or threatened use of physical force 
against the person of another” (the “use-of-physical-force clause”); (2) “is burglary, arson, or 
extortion, involves the use of ex plosives” (the “enumerated-offens e clause”); or (3) “otherwise 
involves conduct that presents a serious potential risk of physical injury to another” (the “residual 
clause”). 18 U.S.C. § 924(e)(2)(B). It was th is third clause—the re sidual clause—that the 
Supreme Court deemed unconstitutional in Johnson. 135 S. Ct. at 2563. 
Section 4B1.1 enhances a defendant’s offense level if he or she qualifies as a “career offender,” 
i.e., adult defendant whose offense of conviction is a “crime of violence or controlled substance 
offense” and who has “at least two prior felony c onvictions of either a crime of violence or a
controlled substance offense.” U.S. Sentencing Manual § 4B1.1(a). “Crime of violence” under the 
Guidelines is defined in an almost identical manner as “violent felony” under the ACCA. See U.S. 
Sentencing Manual § 4B1.2(a) (adopting identical use-of-force and residual clauses as well as a 
nearly identical enumerated-offense clause). PageID
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motion that they want[ed] the Court to consider in conjunction with, or prior to, ruling on [the 
instant] petition[] on or before April 1, 2017;” and (3) requiring that responsive pleadings be filed 
on or before April 15, 2017 [Doc. 552]. Shortly therea fter, this Court received Petitioner’s notice 
of voluntary dismissal and the United States’ motion to deny and dismiss [Docs. 559, 560]. 
I. NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE
Federal Rule of Civil Procedure 41(a)(1)(A )(i) provides that a movant may voluntarily 
dismiss an action without a court order by filing “a notice of dismissal before the opposing party 
serves either an answer or a motion for summary judgment[.]” Subsection (B) states the following: 
Unless the notice of dismissal 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.
Fed. R. Civ. P. 41(a)(1)(B). By contrast, Federa l Rule of Civil Procedure 41(a)(2) provides that 
“[e]xcept as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only 
by court order, on terms that the court consid ers proper.” Because properly filed notices of 
voluntary dismissal are self-effectuating, the issue before this Court is whether Petitioner retains 
his unilateral rights under Rule 41(a)(1), or is limited to the procedures available under Rule 
41(a)(2). The answer depends on whether any of the filings that the United States submitted prior 
to the notice constitute an “answer” or “motion for summary judgment” under Rule 41(a)(1)(A)(i).
As an initial matter, binding Sixth Circuit precedent prevents this Court from construing 
the United States’ motion to deny and dismiss with prejudice as an answer or a motion for summary 
judgment for purposes of Rule 41(a)(1)(A)(i). See, e.g., Aamot v. Kassel, 1 F.3d 441, 444 (6th Cir. 
1993) (“[W]e decline to agree with the District Court’s action and follow those cases which ‘treat’ PageID
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motions to dismiss filed pursuant to Rule 12(b)(6) as summary judgment motions for purposes of 
barring voluntary dismissal.”). All that remains is the motion to defer [Doc. 525].
According to the Rule 5 Governing § 2255 Proceedings, answers to petitions for collateral 
relief must: (1) “address the allegations in the motion;” (2) “state whether the moving party has 
used any other federal remedies, including any prior post-conviction motions under these rules or 
any previous rules;” and (3) specify “whether the moving party received an evidentiary hearing.”
The United States’ motion to defer does none of the above. While it acknowledges that 
the Sixth Circuit extended Johnson to the Guidelines residual clause in Pawlak v. United States ,
822 F.3d 902 (6th Cir. 2016), and argues that Petitioner still “ha[d] not show n...t h a t Johnson
applies retroactively to the Guidelines on collateral review,” it does so only as justification for why 
this Court should defer ruling and additional briefi ng until the Supreme Court’s potentially 
dispositive ruling in Beckles [Doc. 525 pp. 1–3(“[T]he Sixth Circuit has consistently emphasized 
that the issue will be decided by . . . Beckles ...[ a n d ] u r g e d...m o t i o n s r a i s i n g t h a t i s s u e [ b e 
held] in abeyance.”)]. Unlike the “response[s] in opposition” filed by the United States in a
majority of this district’s Johnson-based collateral challenges, the motion to defer includes neither
a lengthy discussion of constitutional vagueness and retroactivity nor any application of
categorical and modified categorical approaches to the prior convictions that Petitioner claimed no 
longer qualified as crimes of violence. For th ese reasons and because the motion focuses on the 
need to defer ruling instead of the need to grant or deny relief, this Court declines to construe it as 
an answer or motion for summary judgment under Rule 41(a)(1)(A)(i). Accord Brown v. T-Ink, 
LLC, No. 07-cv-13111, 2007 WL 4098207, at *4 (E.D. Mich. Nov. 16, 2007) (“‘[M]otion to 
compel arbitration and stay proceedings is not the equivalent of an answer or a motion for summary 
judgment’ under Rule 41(a)(1).” (quoting Hamilton v. Shearson-Lehman American Express, Inc., PageID
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813 F.2d 1532, 1535 (9th Cir. 1987)); see also Merit Ins. Co. v. Leatherby Ins. Co., 581 F.2d 137, 
142 (7th Cir. 1978) (holding that motion to stay was not the equivalent of an answer or motion for 
summary judgment because “[m]erits of the contr oversy are not to be considered by the court” 
(internal quotation and citation omitted)).
Because this Court finds that Petitioner f iled his notice of voluntary dismissal [Doc. 559]
before the United States filed an answer or a motion for summary judgment within the meaning of 
Rule 41(a)(1)(A)(i), that “notice of dismissal is self-effectuating, leaving no basis upon which [this 
C o u r t ] c a n p r e v e n t...d i s m i s s [ a l ] w i thout prejudice.” Aamot, 1 F.3d at 445; see also Ames v. 
Ethicon Endo-Surgery, Inc. , No. 11-2942, 2012 WL 215234, at *1 (W.D. Tenn. Jan. 24, 2012) 
(“Rule 41(a)(1) explicitly leaves the option to di smiss in the plaintiff’s hands: once [a] plaintiff 
gives his notice, the lawsuit is no more.” (quoting Aamot, 1 F.3d at 444)); White v. Berkebile, No. 
5:09-cv-0796, 2009 WL 6700835, at *2–3 (S.D.W.V. Dec. 4, 2009) (dismissing § 2255 motion 
without prejudice where the petitioner filed a notice of voluntary dismissal before the United States 
filed a response in opposition or in support of the collateral relief requested). 
II. Motion to Deny and Dismiss With Prejudice
As discussed, a petitioner can voluntarily dismiss his or her § 2255 motion without an order 
of the district court by filing a notice of dismissal at any time before service of an answer or motion 
for summary judgment by the United States, whichever occurs first. Ames, 2012 WL 215234, at 
*1. The Sixth Circuit has held that this rule should be “taken at face value” and that district courts 
should assume that the rule “means what it says.” Aamot, 1 F.3d at 444 (quoting Carter v. United 
States, 547 F.2d 258, 259 (5th Cir. 1997)). Because Rule 41(a)(1)(A)(i) “does not sanction a case-
by-case analysis of the amount of effort expende d by the [United States]” and the instant action PageID
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was “no more” after submission of the notice of voluntary dismissal, Ames, 2012 WL 215234, at 
*1, the United States’ motion to deny and dismiss [Doc. 560] must be denied as moot. 
III. CONCLUSION 
For the foregoing reasons, the Clerk’s Office will be DIRECTED to terminate Petitioner’s 
supplemented § 2255 petition [Docs. 503, 511, 521, 523, 531] and the civil action associated 
therewith [E.D. Tenn. Case No. 3:16-CV-437-PLR]. The dismissal will be without prejudice. The 
United States’ motion to deny and dismiss [Doc. 560] will be DENIED as moot.
ORDER ACCORDINGLY. PageID
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