United States District Court, W.D. Pennsylvania
DONETTA W. AMBROSE SENIOR JUDGE.
action, Defendant pleaded guilty to two Counts of violating
21 U.S.C. § 841. On March 13, 2013, he was sentenced to 168
months of imprisonment at each Count, to run concurrently.
The Court of Appeals affirmed this Court's judgment.
Defendant filed a pro se Motion to Vacate on June 19, 2014.
Counsel was appointed, and the proceedings were stayed at
Defendant's request pending Johnson v. United
States, 135 S.Ct. 2551 (2015). After Johnson,
Defendant sought and received a stay pending Mathis v.
United States, 136 S.Ct. 2243 (2016). The stay
specifically excluded Defendant's filing of an Amended
Motion based on Johnson, and Defendant filed a
counseled Amended Motion asserting a Johnson claim.
After the parties fully briefed the impact of
Johnson and Mathis, on March 6, 2017, the
Supreme Court decided Beckles v. United States, 137
S.Ct. 886 (2017). On March 27, 2017, Defendant moved to
voluntarily withdraw his Motion to Vacate. The Court granted
the Motion, deeming the petition withdrawn without prejudice.
On June 15, 2017, Defendant filed a pro se Motion to
Vacate, which is now before the Court.
prisoner in federal custody may move to vacate his or her
sentence under 28 U.S.C. § 2255(a) if such
"sentence was imposed in violation of the Constitution
or laws of the United States." 28 U.S.C. § 2255(a).
"[R]elief under § 2255 is available only when
'the claimed error of law was a fundamental defect which
inherently results in a complete miscarriage of justice, and
... present[s] exceptional circumstances where the need for
the remedy afforded by the writ ... is apparent.'"
United States v. Travillion, 759 F.3d 281, 288 (3d
Cir. 2014) (quoting Davis v. United States, 417 U.S.
333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)). A district
court need not hold an evidentiary hearing on a Section 2255
motion if the motion, files, and records show conclusively
that the defendant is not entitled to relief. United
States v. Ritter, 93 Fed.Appx. 402, 404 (3d Cir. 2004).
Further, I have considered Defendant's submissions in
accordance with well-established liberal standards applicable
to pro se pleadings. In this case, an evidentiary
hearing is unnecessary, and the Motion will be disposed of on
threshold matter, the Government asserts that Defendant's
Motion is an impermissible second or successive petition. A
"second or successive [Section 2255] motion must be
certified as provided in [28 U.S.C. § 2244] by a panel
of the appropriate court of appeals…. “ 28
U.S.C. § 2255(h). Without the appropriate certification,
the District Court lacks jurisdiction to consider a second or
successive petition. Kunz v. AG of N.J., No.
16-8817, 2017 U.S. Dist. LEXIS 793, at *5 (D.N.J. Jan. 4,
2017). Thus, when an initial Section 2255 petition is
withdrawn, “it is vital to determine whether
[it]…was ‘the real thing'” and bars a
subsequent filing. Potts v. United States, 210 F.3d
770, 770 (7th Cir. 2000).
Court of Appeals has not definitively ruled on when a
voluntarily withdrawn petition “counts” as a
first, but it has indicated that the issue depends on why the
petition was withdrawn. United States v. Doe, 810
F.3d 132 (3d Cir. 2015) (citing Thai v. United
States, 391 F.3d 491, 495 (2d Cir. 2004)). This focus
accords with the approaches of other Circuits. For example,
according to the Seventh Circuit, a petitioner should not
"be permitted to thwart the limitations on the filing of
second or successive motions by withdrawing his first
petition as soon as it becomes evident that the district
court is going to dismiss it on the merits." Felder
v. McVicar, 113 F.3d 696, 698 (7th Cir. 1997).
Similarly, the Second Circuit has held that when a §
2255 motion is voluntarily withdrawn, it “counts”
as a first motion if "the circumstances surrounding
withdrawal clearly and objectively indicate that the
petitioner knows his or her motion is meritless."
Thai, 391 F.3d at 495. The Sixth Circuit, in turn,
has held that “if a prisoner voluntarily withdraws an
initial § 2255 motion ‘in the face of looming
defeat, '" a subsequent Section 2255 motion is
second or successive. In re Robertson, No. 17-3978,
2018 U.S. App. LEXIS 1383, at *2 (6th Cir. Jan. 19, 2018).
Under this approach, a court considering this issue may
reflect on circumstances such as the state of the law at the
time that the subject motion was made, and when it was
withdrawn. United States v. Wilson, No. 11-cr-00333,
2017 U.S. Dist. LEXIS 128489, at *2-3 (D. Nev. Aug. 11,
2017); see also United States v. Christian, 2013
U.S. Dist. LEXIS 35156, at **10-11 (W.D. Pa. Mar. 14, 2013).
at all pertinent times, Defendant was represented by capable
and experienced counsel. Defendant's Motion was fully
briefed, following stays based on Mathis and
Johnson. In the interim, Beckles was handed
down. Weeks later, counsel, who had otherwise vigorously
pursued Defendant's cause, sought to withdraw the Motion.
Under all of the surrounding circumstances, the withdrawn
Motion cannot be thought of as an abortive filing. Instead,
it appears that Defendant withdrew his petition when it
appeared that it would be denied on its merits. Otherwise
stated, “[t]hese facts raise a fair inference that
Petitioner's decision to withdraw his first § 2255
motion was based on his understanding that Beckles
left him with no avenue for relief.” Stevenson v.
United States, No. 17-0580, 2017 U.S. Dist. LEXIS
138327, at *5 (W.D.N.Y. Aug. 25, 2017). The fact that the
withdrawal was accomplished without prejudice does not alter
the analysis. Id at *6. Accordingly, the present
Section 2255 Motion is an impermissible second or successive
filing, which this Court is without authority to adjudicate
at this time. As a result of this disposition, I do not reach
the Government's timeliness or substantive challenges to
Motion will be denied. No certificate of appeal shall issue
pursuant to 28 U.S.C. § 2253, as jurists of reason would
not find today's decision debatable. However, today's
decision is without prejudice to Defendant to seek the
appropriate certification from the Court of Appeals.
NOW, this 27th day of April, 2018, IT IS SO ORDERED.
 Judge McLaughlin, and then Judge
Cohill and Judge Cercone, presided over this matter until it
was transferred to my ...