United States District Court, S.D. Ohio, Western Division, Cincinnati
J. Dlott District Judge
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
§ 2255 case is before the Court on Defendant's
Request for a Certificate of Appealability (ECF No. 192) on
the question “whether, in light of Johnson v.
United States, 135 S.Ct. 2551 (2015), the one-year
requirement to file petitions under 18 U.S.C. 2255 [sic]; and
the subsequent decision in Beckles v. United States,
__U.S.__, 2016 WL 1029080 (2016), the Defendant should have
been allowed to withdraw his petition for relief.”
Id. at PageID 900. Defendant also moves to appeal
in forma pauperis (ECF No. 193).
been filed post-judgment, these Motions are deemed referred
to the undersigned for report and recommendations under 28
U.S.C. § 636(b)(3).
obtain a certificate of appealability, a petitioner must show
at least that “jurists of reason would find it
debatable whether the petition states a valid claim of denial
of a constitutional right.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). That is, it must find that
reasonable jurists would find the district court's
assessment of the petitioner's constitutional claims
debatable or wrong or that they warrant encouragement to
proceed further. Banks v. Dretke, 540 U.S. 668, 705
(2004); Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). Buck v. Davis, 580 U.S.__, 137 S.Ct. 759,
197 L.Ed.2d 1 (2017).
1, 2005, Leonard Drister entered into a Plea Agreement with
the United States in which he agreed to plead guilty to
Counts 2 and 5 of the Indictment in this case, charging him
with armed bank robbery in violation of 18 U.S.C.
§§ 2113(a) and (d) and § 2 and with
discharging a firearm during a crime of violence in violation
of 18 U.S.C. § 924(c)(1)A)(iii) (ECF No. 59, PageID
115). On May 5, 2006, he was sentenced to imprisonment for
235 months (ECF No. 72). The conviction was affirmed on
appeal. United States v. Drister, 240 Fed.Appx. 81
(6th Cir. Aug. 27, 2007). The Supreme Court denied
certiorari January 15, 2008 (ECF No. 115). In the absence of
a later start date, Drister's time to file a motion to
vacate under § 2255 expired one year later on January
15, 2009. 28 U.S.C. § 2255(f)(1).
April 1, 2016, the Court appointed Attorney Ty Foster to
represent Mr. Drister pursuant to General Order 15-03 (ECF
No. 153). Approximately one month later, Drister filed
commenced the instant § 2255 proceeding pro se (ECF No.
154). Counsel then filed a Supplement (ECF No. 158). Although
the Magistrate Judge ordered an answer (ECF No. 156), the
United States filed an Amended Motion to Hold the Case in
Abeyance based on the grant of certiorari in Beckles, supra,
to which Drister consented (ECF No. 168). As directed by the
Sixth Circuit in In re: Embry, 831 F.3d 377 (6th
Cir. 2016), the Court ordered the proceedings stayed pending
the decision in Beckles (ECF No. 169).
the Supreme Court decided in Beckles that its decision in
Johnson v. United States, 576 U.S. __, 135 S.Ct.
2551, 192 L.Ed.2d 569 (2015), does not apply to persons found
to be career offenders under the advisory Sentencing
Guidelines, the Magistrate Judge recommended, on March 8,
2017, that this § 2255 case be dismissed with prejudice
(Report, ECF No. 176). Drister requested and received an
extension of time within which to file objections (ECF No.
178, 179). Instead, he filed a Withdrawal of Motion to Vacate
(ECF No. 180). The Magistrate Judge struck this document
because the Government had filed an answer and dismissal
without prejudice could therefore only be done on motion or
with the government's consent (ECF No. 181). Drister
moved for reconsideration (ECF No. 184, 185), but did not
object to the Magistrate Judge's recommendation that the
motion be denied and Judge Dlott had adopted it (ECF No.
194). In the meantime, Drister had filed a Notice of Appeal
(ECF No. 187).
claims that the Magistrate Judge's striking of his
Withdrawal was done sua sponte and not accompanied
by any citation of authority. He relies on Fed.R.Civ.P. 12(f)
which speaks to a court's authority to strike material
from a pleading. (ECF No. 192, PageID 904). He also claims
that “[i]n subsequent rulings, the Magistrate explained
that there was a local Court practice to allow only a Motion
to Dismiss . . .” The Magistrate Judge did not rely on
Fed.R.Civ.P. 12(f) or on any local court practice. Instead,
the Magistrate Judge relied on Fed.R.Civ.P. 41 which provides
that an action may be voluntarily dismissed by a plaintiff
without prejudice and without a court order only upon the
filing of a notice of dismissal before the opposing party has
filed either an answer or a motion for summary judgment or a
stipulation of dismissal signed by all parties who have
Magistrate Judge, however, erred in striking the Withdrawal.
In this case the United States had not filed an answer or
motion for summary judgment. Therefore Drister was entitled
to dismiss this § 2255 proceeding without prejudice
without either the Government's agreement or an order of
order to correct this error, the Magistrate Judge agrees that
if Drister voluntarily dismisses his appeal, the Magistrate
Judge will withdraw the Order striking the Withdrawal and
allow the case to stand as dismissed without prejudice. If he
declines to dismiss the appeal, he should be granted a
certificate of appealability on the question presented and
allowed to proceed on appeal in forma pauperis.