ARTHUR FRANZ WAMMEL v. UNITED STATES OF AMERICA (2025)

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Through counsel, Arthur Franz Wammel filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, asserting claims of ineffective assistance of trial counsel. Dkt. 5. The government filed a court-ordered response, Dkt. 14; see Dkt. 6, and Wammel requested an evidentiary hearing, Dkts. 25, 27. But after the court granted that request, Dkt. 28, Wammel asked for a continuance, explaining that “[t]he parties [we]re in discussions that could impact whether the Court will need to conduct the evidentiary hearing,” Dkt. 29 at 1. He then filed an unopposed motion to dismiss his § 2255 motion, again referencing those discussions. Dkt. 32. The court will recommend that the motion to dismiss be granted.

DISCUSSION

The Rules Governing § 2255 Proceedings in the United States District Courts do not address motions to dismiss. But Rule 12 provides that “[t]he Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules,” and the Fifth Circuit has countenanced the application of Federal Rule of Civil Procedure 41 in the § 2255 context. E.g., United States v. Lanfranca, 24 F.3d 237, 1994 WL 242791 at *1 (5th Cir. 1994).

Rule 41 allows a plaintiff to “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.” Fed. R. Civ. P. 41(a)(1)(A). “Except 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 considers proper.” Id. R. 41(a)(2).

Because the government filed a response (the equivalent of an answer) to Wammel's § 2255 motion and the parties have not stipulated to dismissal, a court order is required here. As the Fifth Circuit has explained, Rule 41(a)(2)

permits a district court to dismiss an action at the plaintiff's request upon such terms and conditions as the court deems proper. The decision to dismiss an action rests within the sound discretion of the trial court and may only be reversed for an abuse of that discretion. In determining whether to grant a dismissal, the principal consideration is whether the dismissal would prejudice the defendant. If a dismissal would unfairly prejudice the defendant, then the plaintiff's motion to dismiss should be denied.

Schwarz v. Folloder, 767 F.2d 125, 129 (5th Cir. 1985) (citations omitted). When “faced with a Rule 41(a)(2) motion the district court should first ask whether an unconditional dismissal will cause the non-movant to suffer plain legal prejudice. If not, it should generally, absent some evidence of abuse by the movant, grant the motion.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002).

There is neither evidence of abuse nor any indication that dismissal would prejudice the government. The government, after all, did not oppose the motion to dismiss.

As far as the court can tell, the dismissal could prejudice only Wammel, especially because “28 U.S.C. § 2255 establishes a 1–year period of limitation within which a federal prisoner may file a motion to vacate, set aside, or correct his sentence under that section,” Dodd v. United States, 545 U.S. 353, 354 (2005) (quotation marks omitted), making any dismissal without prejudice effectively a dismissal with prejudice after the limitations clock has run, see Vafaiyan v. Target Inc., 251 F. App'x 862, 863 (5th Cir. 2007). But Wammel, who is represented by counsel, chose to accept that result by moving to dismiss his § 2255 motion at this stage.

RECOMMENDATION

It is RECOMMENDED that the motion for relief under 28 U.S.C. § 2255, Dkt. 5, be DISMISSED WITHOUT PREJUDICE, see Fed. R. Civ. P. 41(a)(2).

* * *

Within 14 days after service of the magistrate judge's report, any party may serve and file specific written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). To be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific.

Failure to file specific, written objections will bar the party from appealing the unobjected-to factual findings and legal conclusions of the magistrate judge that are accepted by the district court, except upon grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. See Douglass United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from 10 to 14 days).