United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
closed case is before the Court on movant William
Gholson's motion to reinstate his amended motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. For the following reasons, movant's motion
will be denied.
October 7, 2011, movant pled guilty to one count of
conspiracy to distribute and possess with the intent to
distribute more than five kilograms of cocaine and fifty
grams of cocaine base, and three counts of distribution of
more than five grams of cocaine base. See United States
v. Gholson (“Gholson I”), No.
4:10-CR-618-AGF-3 at ECF No. 559. On March 5, 2012, the Court
sentenced movant to 204 months' imprisonment and five
years of supervised release. Movant was sentenced as a career
offender under § 4B1.1 of the United States Sentencing
Guidelines (the “Guidelines”).
December 3, 2014, in Gholson I, counsel filed a
motion for retroactive application of amendment 782 of the
Guidelines. The probation office filed a report stating that
movant was sentenced as a career offender under the
Guidelines, and thus not eligible for a reduction in his
sentence based on amendment 782. Following the filing of this
probation report, defense counsel filed a motion to withdraw
his previously filed motion, which the Court granted. See
Gholson I, ECF No. 867.
August 10, 2017, in Gholson I, movant filed another
pro se motion for retroactive application of amendment 782 of
the Guidelines. See Gholson I, ECF No. 948. The
Court denied movant's pro se motion because, again,
movant's offense level was determined based on his career
offender status under § 4B1.1. See Gholson at
ECF No. 951. Additionally, the Court stated that movant's
sentence of 204 months' imprisonment resulted from a
downward variance below the Guideline range. “This
sentence is below the Guideline range under the amended
Guidelines. Pursuant to U.S.S.G. § 1B1.10(b)(C)(A), a
Court may not reduce a defendant's term of imprisonment
to a term that is less than the minimum of the Amended
Guideline range.” Id.
September 25, 2015, movant filed a pro se motion to vacate,
set aside, or correct his sentence under 28 U.S.C. §
2255 based on Johnson v. United States, 135 S.Ct.
2551 (2015). The Court opened the instant case, Gholson
v. United States, 4:15-CV-1478-AGF (“Gholson
II”), and appointed the Federal Public Defender to
represent movant. On March 21, 2016, counsel filed an amended
motion to vacate under § 2255. Counsel asserted that
under Johnson movant did not qualify as a career
counsel filed a motion to stay Gholson II based on
the Supreme Court's pending case Welch v. United
States, which presented the question of whether
Johnson applied retroactively in a Guidelines
context. The Court granted this stay. During the stay of the
case pending Welch, counsel file another motion to
stay pending the Supreme Court's decision in Beckles
v. United States, 137 S.Ct. 886 (2017), which the Court
also granted. See ECF No. 19.
April 13, 2017, after Beckles was decided,
movant's counsel filed a motion to voluntarily dismiss
without prejudice Gholson II. See ECF No. 23.
Movant, himself, filed a signed acknowledgement that he had
authorized counsel to file the motion to voluntarily dismiss.
See Id. On April 17, 2017, the Court granted
movant's motion and dismissed this case without
January 19, 2018, the Eighth Circuit Court of Appeals issued
a Judgment in Gholson II, denying movant's
petition for authorization to file a successive habeas
application in the district court.
pending before the Court is movant's pro se motion filed
July 30, 2018 “for an order reinstating the motion that
was filed in this Court amended motion Title 18 U.S.C. §
2255 and the amended motion to correct sentence under 28
U.S.C. § 2255.” Movant is requesting the Court to
reopen this case that, on the advice of counsel, movant
voluntarily dismissed under Rule 41(a) after the Supreme
Court's decision in Beckles. Movant states as
[I]n light of Johnson, his Sentence violates Due
Process of Law. This Court should reinstate The Material that
was Requested held in abeyance. This Court should Vacate his
erroneous Career Offender Sentence and Re-Sentence him
without The Career Offender Enhancement.
this case was closed through movant's voluntary dismissal
without prejudice under Federal Rule of Civil Procedure
41(a)(1)(A). A voluntary dismissal under Rule 41(a) normally
divests the Court of jurisdiction over the action. See,
e.g., Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375, 378-82 (1994). Exceptions to this
rule have been recognized for ...