Stefan Gauthier v. United States of America

2024 DNH 038

• Court: District Court, D. New Hampshire
• Decided: May 9, 2024
• Docket: 23-cv-507-SM-TSM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Stefan Gauthier

v. Case No. 23-cv-507-SM-TSM Opinion No. 2024 DNH 038 United States of America

O R D E R

Stefan Gauthier, who is a prisoner and proceeding pro se,

filed a petition, pursuant to 28 U.S.C. § 2255, to vacate his

sentence on two counts of possession with intent to distribute

methamphetamine. United States v. Gauthier, 19-cr-08-SM (D.N.H.

Aug. 27, 2021) (aff’d 53 F.4th 674 (1st Cir. 2022)). The

government filed a response in which it challenged each of

Gauthier’s claims on the merits. Gauthier then moved to

withdraw his petition, noting that he sought to avoid having the

withdrawn petition count for purposes of a second or successive

petition under 28 U.S.C. § 2255(h). The government filed a

response, acknowledging Gauthier’s right to withdraw his

petition but not agreeing that the withdrawn petition would not

count as a first petition for purposes of § 2255(h).

For the following reasons, the court gives Gauthier an

opportunity to withdraw his motion before granting the motion to

withdraw his petition (doc. no. 4). Discussion

Gauthier’s motion raises questions about the effect of a

voluntary withdrawal of a § 2255 petition. Gauthier asks the

court to dismiss the petition in a manner that will avoid the

restrictions imposed by § 2255(h). The government, in essence,

argues that the second or successive determination must be made

if and when Gauthier files another petition that would implicate

the restrictions under § 2255(h).

An action may be voluntarily dismissed after the opposing

party has responded only by order of the court and upon “terms

that the court considers proper.” Fed. R. Civ. P. 41(a)(2).

Voluntary dismissal by court order is generally without

prejudice. Id. The Federal Rules of Civil Procedure, however,

apply to § 2255 proceedings only to the extent that they are not

inconsistent with § 2255. Rule 12, Rules Governing § 2255

Proceedings for the United States District Courts. For that

reason, Rule 41 cannot be applied in § 2255 proceedings to block

the application of § 2255(h). Williams v. United States, 91

F.4th 1256, 1259 (8th Cir. 2024).

Section 2255(h) “severely restricts the circumstances under

which individuals may file multiple petitions.” Case No. 19-cv-

184-JAW, Mitchell v. United States, 2024 WL 326784, at *5 (D.

Me. Jan. 29, 2024). Under § 2255(h), a petitioner must seek

2 certification from the appropriate court of appeals before

filing a second or successive petition. See 28 U.S.C. § 2244.

To obtain certification, the petition must contain either newly

discovered evidence or a new and retroactive rule of

constitutional law that was not available previously. § 2255(h).

Section 2255 does not define “second or successive.” United

States v. Barrett, 178 F.3d 34, 42-43 (1st Cir. 1999).

Generally, a subsequently filed petition is not second or

successive, for purposes of § 2255(h), “if the earlier petition

terminated without a judgment on the merits.” Pratt v. United

States, 129 F.3d 54, 60 (1st Cir. 1997). Although the First

Circuit Court of Appeals has not addressed the issue, other

courts recognize an exception to the general rule when a

petitioner voluntarily withdraws an initial § 2255 petition

after the government has filed a response that demonstrates the

futility of the claims in the petition. See, e.g., Williams, 91

F.4th at 1258-59 (citing cases); United States v. Raymond, 815

F. App’x 144, 147 (9th Cir. 2020); United States v. Rejda, 790

F. App’x 900, 905 (10th Cir. 2019); In re Moore, 735 F. App’x

883, 887 (6th Cir. 2018); Thai v. United States, 391 F.3d 491,

495 (2d Cir. 2004); Potts v. United States, 210 F.3d 770, 770-71

(7th Cir. 2000); Bradley v. United States, Case. No. 23-cv-1069-

FL, 2024 WL 1025458, at *3 (E.D.N.C. Jan. 10, 2024) (citing

cases); McPherson v. United States, Case Nos. 19-cv-8635 & 19-

3 cv-11036, 2020 WL 2765914, at *3-*4 (S.D.N.Y. May 28, 2020)

(citing cases); Boulier v. United States, Case No. 13-cr-132-

JAW, 2020 WL 1930482, at *2 (D. Me. Apr. 21, 2020). As the

courts held in the above cited cases, the effect of a

voluntarily withdrawn petition, for purposes of § 2255(h),

depends on the circumstances that existed when the petition was

withdrawn, including whether the petitioner was represented by

counsel and his reasons for withdrawing the petition.

Here, the question of a second or successive petition under

§ 2255(h) is not expressly before the court--Gauthier has not

filed another petition that might trigger the § 2255(h)

requirements. Whether the circumstances and reasons for

Gauthier’s withdrawing the petition would weigh in favor of

counting the current petition for purposes of § 2255(h) must be

decided if and when Gauthier files another petition. 1 Dismissal

of the current petition without prejudice, as provided by Rule

41(a)(2), resolves only that petition and does not determine the

petition’s status in the context of § 2255(h). See, e.g., In re

Moore, 735 F. App’x at 887; see also Williams, 91 F.4th at 1259.

1 The Tenth Circuit has suggested that the counting decision should be made when a petition is voluntarily dismissed. See Rejda, 790 F. App’x at 904-05. The court declines to follow that guidance, which is not binding on this court.

4 Conclusion

For the foregoing reasons, Gauthier’s motion to withdraw

the petition (doc. no. 4) would ordinarily be granted, but as is

discussed above, that determination does not decide any issue

that may arise with respect to the application of § 2255(h) if

Gauthier files another § 2255 petition.

In light of that result and in recognition of Gauthier’s

pro se status, the court gives Gauthier fourteen days from the

date of this order to file a notice that he either (1) withdraws

his petition, despite the lack of a determination as to whether

another petition will count as second or successive under

§ 2255(h), or (2) that he withdraws his motion to withdraw and

provides a response to the government’s motion to dismiss.

If Gauthier does not file the notice, the court will enter

judgment based on Gauthier’s motion to withdraw as is provided

in this order.

SO ORDERED.

______________________________ Steven J. McAuliffe United States District Judge

May 9, 2024

cc: Stefan Gauthier, pro se John J. Kennedy, AUSA