                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                            FOR THE TENTH CIRCUIT                        October 16, 2019
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 19-8015
                                                 (D.C. Nos. 2:18-CV-00191-ABJ &
 NORMAN CHARLES REJDA,                                1:09-CR-00218-ABJ-1)
                                                             (D. Wyo.)
       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HOLMES, MATHESON, and MORITZ, Circuit Judges.
                 _________________________________

      The district court construed Norman Rejda’s motion filed under 28 U.S.C.

§ 2255 as second or successive and unauthorized. The court therefore dismissed the

motion for lack of jurisdiction. Rejda appeals, proceeding pro se. The question

presented is whether a previous § 2255 motion filed by Rejda, which he voluntarily

dismissed, counts as a “first” such motion, making his second-in-time § 2255 motion

second or successive and therefore subject to the authorization requirements in



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
28 U.S.C. § 2255(h). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the

district court’s judgment.

I.    Background

      Rejda pleaded guilty to federal drug charges in 2010. His 262-month prison

sentence was enhanced by application of the career offender guideline because he had

two prior convictions for crimes of violence. Rejda did not file a direct appeal. The

district court subsequently reduced his sentence to 188 months’ imprisonment.

      A.     Section 2255 Motion Filed in 2016

      Rejda filed a counseled § 2255 motion in 2016 (2016 Motion), arguing that he

was entitled to relief under Johnson v. United States, 135 S. Ct. 2551 (2015).

Johnson voided, in part, the definition of a qualifying “violent felony” used for a

sentence enhancement under the Armed Career Criminal Act. Id. at 2563. The Court

held that a “residual clause” in the definition—covering crimes “involv[ing] conduct

that presents a serious potential risk of physical injury to another,” 18 U.S.C.

§ 924(e)(2)(B)(ii)—violated the constitutional prohibition against vague criminal

laws, and that an increased sentence based on that clause violates a defendant’s right

to due process. Johnson, 135 S. Ct. at 2557, 2563. The Court made Johnson’s

holding retroactive to cases on collateral review in Welch v. United States, 136 S. Ct.

1257, 1265 (2016).

      Rejda asserted in his 2016 Motion that the ruling in Johnson applied to his

sentence because it was enhanced under an identically worded residual clause in the

career offender guideline, which, he contended, was likewise unconstitutionally

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vague. After briefing was complete, the district court stayed proceedings on Rejda’s

2016 Motion pending the Supreme Court’s decision in a case that also challenged the

validity of the residual clause in the career offender guideline. The district court

stated that the Supreme Court’s decision “will likely be determinative of [Rejda’s]

pending § 2255 motion.” Order Staying Further Proceedings Pending the Supreme

Court’s Ruling in Beckles v. United States at 6, No. 2:16-cv-00094-ABJ (D. Wyo.

Jan. 27, 2017), ECF No. 10. The Court ultimately ruled against Rejda’s position in

Beckles v. United States, 137 S. Ct. 886, 892 (2017), concluding that the sentencing

guidelines “are not subject to a vagueness challenge under the Due Process Clause”

because “they merely guide the exercise of a court’s discretion in choosing an

appropriate sentence within the statutory range.”

      Following the decision in Beckles, the district court directed the parties to

submit status reports on Rejda’s 2016 Motion. The court’s order stated:

      To avoid the unnecessary waste of resources, given the holding in Beckles
      and the grounds upon which the petition in this case is based, the Court will
      require that both Petitioner and Respondent file with this Court a brief
      status report indicating their position on the validity of the § 2255 petition
      in light of the holding in Beckles.
Order Requiring Filing of Status Report at 1-2, No. 2:16-cv-00094-ABJ (D. Wyo.

Mar. 9, 2017), ECF No. 11.

      The government filed a combined status report and motion to dismiss, arguing

that, in light of Beckles, Rejda’s 2016 Motion was untimely. Rejda did not submit a

status report or respond to the government’s motion to dismiss. He instead filed a

motion under Federal Rule of Civil Procedure 41 seeking to voluntarily dismiss his

                                            3
2016 Motion, stating that he “no longer seeks relief through § 2255.” Motion for

Voluntary Dismissal at 1, No. 2:16-cv-00094-ABJ (D. Wyo. Mar. 20, 2017),

ECF No. 13. The district court granted Rejda’s motion for voluntary dismissal “for

good cause shown,” noting his “representation that he no longer seeks relief through

§ 2255.” Order Granting Voluntary Dismissal of 28 U.S.C. § 2255 Motion at 1,

No. 2:16-cv-00094-ABJ (D. Wyo. Apr. 13, 2017), ECF No. 14. The dismissal order

did not specify that the dismissal was with prejudice. The court denied all other

pending motions, including the government’s motion to dismiss, as moot.

      B.     Section 2255 Motion Filed in 2018

      Rejda filed a pro se § 2255 motion in 2018 (2018 Motion), in which he alleged

ineffective assistance of counsel and asserted another claim challenging his sentence.

The government responded that the district court lacked jurisdiction to consider

Rejda’s second-in-time § 2255 motion because it was second or successive and

unauthorized.

      The district court agreed. Following the reasoning in published and

unpublished cases from other circuits, it held that Rejda’s 2016 Motion counted as a

first § 2255 motion. In reaching this conclusion, the court considered the

circumstances surrounding the dismissal of Rejda’s previous motion, including his

representation by counsel in that case. It reasoned that, by moving to voluntarily

dismiss his 2016 Motion, Rejda “appear[ed] to have realized (though he did not

explicitly acknowledge) the motion was doomed considering the Supreme Court’s



                                          4
holding in Beckles and [the district court’s] language in its order requesting a status

update.” R., Vol. 1 at 71.

      The district court therefore dismissed Rejda’s 2018 Motion for lack of

jurisdiction because it was second or successive and he had not obtained this court’s

authorization to file it. It granted Rejda a certificate of appealability on the question

“whether [his] first-in-time § 2255 motion counts for purposes of [the authorization

requirements in 28 U.S.C.] § 2255(h).” R., Vol. 1 at 73-74.

II.   Discussion

      We review de novo the district court’s dismissal of Rejda’s 2018 Motion for

lack of jurisdiction and any underlying findings of fact for clear error. See United

States v. Bong, 913 F.3d 1252, 1260 (10th Cir. 2019).

      A.     The Parties’ Positions on Appeal

      Rejda argues that his 2016 Motion does not count as a “first” § 2255 motion

because the district court did not decide it on the merits. He acknowledges that some

courts have held, based on the particular facts of a case, that a voluntarily dismissed

§ 2255 motion counts as a first such motion. But he argues that the facts in this case

do not support the district court’s holding.

      In particular, Rejda argues that he never explicitly conceded that his

2016 Motion lacked merit, nor did he or his counsel otherwise clearly indicate a

belief that the motion was meritless. Rather, he moved to voluntarily dismiss his

2016 Motion under Rule 41(a)(2), which permits the district court to dismiss an

action without prejudice even after the filing of an answer. Rejda asserts that his

                                               5
counsel advised that the motion to voluntarily dismiss his 2016 Motion was an effort

to avoid the very prejudice he has now suffered: dismissal of his second-in-time

§ 2255 motion as second or successive and unauthorized. He contends further that

the dismissal of his 2016 Motion was without prejudice because the district court’s

dismissal order did not stipulate that the dismissal was with prejudice. See Fed. R.

Civ. P. 41(a)(2) (“Unless the order states otherwise, a dismissal under this

paragraph (2) is without prejudice.”). Rejda maintains that the facts in this case

present an issue of first impression in this circuit and that none of the decisions relied

on by the district court in dismissing his 2018 Motion are binding on this court.

      The government acknowledges that, in some circumstances, a first-in-time

§ 2255 motion that is voluntarily dismissed does not count as a “first” motion, such

that a later motion is not second or successive. But it contends that, when a

voluntary dismissal occurs at a point in the proceedings when it has become clear that

a § 2255 motion is “doomed”—that is, when “the handwriting is on the wall”—

treating the dismissal as one without prejudice and not counting the filing as a “first”

§ 2255 motion “would effectively thwart the limitations on the filing of second or

successive motions” under § 2255(h). Aplee. Br. at 14 (internal quotation marks

omitted).

      The government argues that the circumstances surrounding Rejda’s motion to

voluntarily dismiss his 2016 Motion support the district court’s holding that it counts

as a first § 2255 motion. It contends there is no question that the Supreme Court’s

decision in Beckles rendered Rejda’s Johnson-based challenge to his career offender

                                            6
sentence meritless. And it asserts that the 2016 Motion was contentiously litigated

for nearly a year until Rejda promptly abandoned it when its outcome was inevitable

in light of Beckles. Thus, despite his failure to reference that decision as the basis for

his Rule 41 motion to voluntarily dismiss his 2016 Motion, the sequence of events

demonstrates that Beckles was the sole predicate for that motion. The government

further contends that, but for Rejda’s voluntary dismissal motion, the district court

would have granted the government’s motion to dismiss, resulting in an adjudication

on the merits of his 2016 Motion.

      B.     Relevant Case Law

      “The phrase ‘second or successive . . .’ is a term of art given substance in [the

Supreme Court’s] prior habeas corpus cases.” Slack v. McDaniel, 529 U.S. 473, 486

(2000). And not every first-in-time § 2255 motion challenging a conviction counts as

a “first” such motion, making a later motion that concerns the same conviction

second or successive. In Haro-Arteaga v. United States, 199 F.3d 1195, 1196

(10th Cir. 1999) (per curiam), we provided examples of the types of cases where a

prisoner’s initial filing does not count as a “first” motion, including a motion used

solely to reinstate a prisoner’s right to a direct appeal, a motion dismissed without

prejudice because the prisoner’s direct appeal was still pending, and a motion

dismissed for failure to pay the filing fee. We then considered whether a prisoner’s

§ 2255 motion that was voluntarily withdrawn counted as a first such motion. On the

facts presented in Haro-Arteaga, we held it did not count “because none of the earlier



                                            7
motions filed by [the prisoner] conceded any claim or were decided on the merits or

after the district court engaged in substantive review.” Id. at 1197.

      Based solely on the factors identified in Haro-Arteaga, Rejda’s 2016 Motion

would not count as a first § 2255 motion. As Rejda emphasizes, he never expressly

conceded that his 2016 Motion lacked merit. Compare id. (noting none of the

previous motions conceded any claim), with Felder v. McVicar, 113 F.3d 696, 698

(7th Cir. 1997) (counting a prisoner’s previous habeas application as a first

application where his motion to withdraw it included “an admission of defeat”). And

although the government argues that Rejda’s 2016 Motion would have been

dismissed following Beckles but for the district court’s grant of his voluntary

dismissal motion, the 2016 Motion was ultimately not adjudicated on the merits. See

Haro-Arteaga, 199 F.3d at 1197. Further, although the 2016 Motion was litigated

through full briefing, the district court did not engage in substantive review. See id.

      But this court has not yet decided whether a § 2255 motion that was

voluntarily dismissed under Rule 41—ostensibly without prejudice but under

circumstances like those presented here—counts as a first § 2255 motion.1 The


      1
         We have held, under similar circumstances, that a district court did not abuse
its discretion in denying a prisoner’s motion to withdraw without prejudice his habeas
application filed under 28 U.S.C. § 2254. See Hurd v. Mondragon, 851 F.2d 324,
329 (10th Cir. 1988). We reasoned,

      Although the request to withdraw the petition came before there was final
      disposition of the petition by the district court, it came after the magistrate
      had filed his [proposed findings and recommended disposition]. Hence,
      although the final resolution of the matter was not set in concrete at the
      time the motion to withdraw was filed, there was nonetheless some rather
                                             8
closest decision from another circuit is Potts v. United States, 210 F.3d 770, 770

(7th Cir. 2000), in which the prisoner’s § 2255 motion “was met by a brief in

opposition arguing in detail that the motion lacked merit.” After the prisoner and his

counsel conferred about the merits, they moved to withdraw the motion, and that

motion was granted. Id. The district court subsequently dismissed the prisoner’s

second § 2255 motion. Id. at 771. On appeal, the court noted the prisoner

      was assisted by counsel [in his first motion], filed a competent motion, and
      then appears to have realized (though unlike [the prisoner in Felder] he did
      not acknowledge) that in light of the government’s brief in opposition, the
      motion was doomed. In these circumstances, it would be unrealistic to treat
      the dismissal as tantamount to a refusal to accept a filing because of formal
      deficiencies. He had his opportunity to receive a decision on the merits; he
      flinched, seeing the handwriting on the wall.
Id.

      Another circuit has similarly held that “the reasons for which a petitioner

withdraws a § 2255 petition should govern the analysis of whether that petition

counts for successive purposes, at least where the reasons for withdrawal are

reasonably discernable.” Thai v. United States, 391 F.3d 491, 495 (2d Cir. 2004)

(per curiam). That court concluded, “This approach does not require difficult

inquiries into the subjective intent of the petitioner. It simply requires a

determination of whether the circumstances surrounding withdrawal clearly and



      clear handwriting on the wall in the form of the magistrate’s report. Under
      such circumstances, the district court did not abuse its discretion in denying
      the motion to withdraw [the] petition.
Id. Here, by contrast, the district court granted Rejda’s motion to voluntarily dismiss
his first § 2255 motion.
                                            9
objectively indicate that the petitioner knows his or her motion is meritless.” Id.

(citing Potts with approval).

       Applying this standard, the court concluded that the circumstances in Thai did

not clearly indicate that the prisoner withdrew his § 2255 motion because it was

meritless. Id. at 496. Emphasizing the prisoner’s pro se status and his poor English

skills, the court held that the prisoner’s statements in withdrawing his § 2255 motion

were instead akin to a concession that the motion “was the artless effort of a

layperson without legal training.” Id. (internal quotation marks omitted). In contrast,

had the prisoner been represented by counsel, the court said it might have weighed

the timing of his withdrawal (after the government had responded) against him as an

indication that he knew the motion was doomed. Id.

       C.     Rejda’s 2016 Motion Counts as a First § 2255 Motion

       We agree with our sister circuits’ reasoning and approach in Potts and Thai.

As applied in this case, Rejda’s 2016 Motion counts as a first § 2255 motion. First,

unlike the prisoner in Thai, Rejda was represented by counsel. Second, the timing of

his motion for voluntary dismissal clearly and objectively indicates that he had

concluded his motion was doomed. That motion followed (1) the district court’s

decision to stay the proceedings pending the Supreme Court’s decision in Beckles,

which the court stated would likely be determinative of the 2016 Motion; (2) the

decision in Beckles, which ruled against the position Rejda asserted in his 2016

Motion; and (3) the district court’s order directing the parties to file status reports

“indicating their position on the validity of the § 2255 petition in light of the holding

                                            10
in Beckles,” Order Requiring Filing of Status Report at 1-2, No. 2:16-cv-00094-ABJ

(D. Wyo. Mar. 9, 2017), ECF No. 11.

      In light of these circumstances, the fact that Rejda did not explicitly concede

that his motion was meritless is not determinative. See Potts, 210 F.3d at 771

(holding counseled § 2255 motion, which the prisoner withdrew following the

government’s response, counted as a first § 2255 motion despite no concession that

the motion was meritless). Indeed, Rejda does not contend that he or his counsel

believed that his 2016 Motion was meritorious when he moved to dismiss it

voluntarily. He instead asserts that his counsel had concluded—and advised him—

that if he moved to dismiss his 2016 Motion under Rule 41 without explicitly

conceding defeat, that motion would not be counted as a first § 2255 motion.

      Nor do we believe that the dismissal order’s silence regarding whether the

dismissal was with or without prejudice changes the outcome here. According to

Rule 41(a)(2), that silence means that the dismissal is deemed to be without

prejudice. But the Federal Rules of Civil Procedure “may be applied” to § 2255

proceedings only “to the extent that they are not inconsistent with any statutory

provisions or [the Rules Governing § 2255 Proceedings].” Rules Governing § 2255

Proceedings, Rule 12; cf. United States v. Nelson, 465 F.3d 1145, 1147-49 (10th Cir.

2006) (holding that a prisoner’s motion, construed as filed under Fed. R. Civ. P.

60(b) and 15, conflicted with § 2255’s restrictions on filing second or successive

motions). And our consideration of the entirety of the circumstances surrounding a

voluntary dismissal of a § 2255 motion, in determining whether it counts as a first

                                          11
such motion, counsels against applying this aspect of Rule 41(a)(2) to the exclusion

of other relevant factors. Here, the circumstances clearly show that, following the

Supreme Court’s decision in Beckles, Rejda “flinched, seeing the handwriting on the

wall.” Potts, 210 F.3d at 771.

       Consequently, the district court did not err in holding that Rejda’s

2016 Motion counts as a first § 2255 motion. It therefore properly dismissed his

2018 Motion for lack of jurisdiction because it was second or successive and not

authorized by this court.

III.   Conclusion

       The district court’s judgment is affirmed. We grant Rejda’s motion to proceed

in forma pauperis on appeal and remind him of his obligation to continue making

partial payments until his appellate filing fee has been paid in full.



                                             Entered for the Court
                                             Per Curiam




                                           12
