                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-7935



CECIL EDWARD JACKSON,

                                               Plaintiff - Appellant,

          versus


UNITED STATES OF AMERICA,

                                                Defendant - Appellee.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (CA-97-261-3)


Submitted:   August 3, 2007                 Decided:   August 17, 2007


Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Cecil Edward Jackson, Appellant Pro Se. James Michael Sullivan,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Cecil Edward Jackson appeals a district court order

denying his Fed. R. Civ. P. 60(b)(4) motion.                 We granted a

certificate of appealability on the issue of whether the district

court erred denying the motion as untimely and not vacating that

part of the order dismissing the 28 U.S.C. § 2255 (2000) motion

with prejudice and requiring Appellant receive authorization from

this Court before filing another § 2255 motion.             The Government

filed an informal brief in which it admits the court erred.                  We

vacate the order denying Jackson’s Rule 60(b)(4) motion and remand

for further proceedings.

           In April 1997, Jackson filed a § 2255 motion. Before the

Government answered or filed a motion, Jackson moved for voluntary

dismissal under Fed. R. Civ. P. 41(a)(1)(i).        On June 4, 1997, the

district court granted the motion and dismissed the § 2255 motion

with    prejudice   and    instructed   Jackson    that     he     must   seek

authorization from this court under 28 U.S.C. § 2244 (2000) before

filed a second such motion.

           Nearly seven years later, Jackson filed a motion for

relief from judgment under Rule 60(b)(4).               The district court

denied the motion, finding the § 2255 motion was filed beyond the

one year limitations period ending April 24, 1997.          The court also

found   Jackson’s   Rule   60(b)   motion   was   not    brought    within   a

reasonable time and dismissed it as untimely.


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            We review the denial of a Rule 60(b)(4) motion de novo.

See Compton v. Alton S.S. Co., 608 F.2d 96, 107 (4th Cir. 1979).

A voluntary dismissal under Rule 41(a)(1)(i) is “a matter of

unconditional right and is self-executing, i.e., it is effective at

the moment the notice is filed with the clerk and no judicial

approval is required.”        In re Matthews, 395 F.3d 477, 480 (4th Cir.

2005) (internal quotation marks omitted).                 A voluntary dismissal

acts of if no action was brought at all.               Id.    After an action is

voluntarily      dismissed,    the   court    “lacks      authority   to    conduct

further proceedings on the merits.”            Id. at 480.      “[A] judgment on

the merits that is entered after the plaintiff has filed a proper

41(a)(1) notice of dismissal is indeed void.”                 Marques v. Federal

Reserve Bank, 286 F.3d 1014, 1018 (7th Cir. 2002).

            Thus,   the   district    court’s       order    granting     Jackson’s

motion for voluntarily dismissal under Rule 41(a)(1) was in error,

because    the   case   was   dismissed      with   the     filing   of   Jackson’s

motion.1   See, e.g., Long v. Board of Pardons & Paroles of Texas,

725 F.2d 306, 306-07 (5th Cir. 1984) (petitioner’s voluntary

dismissal of habeas petition completely terminated earlier action

without further order of the court).                In addition, the district

court’s order dismissing Jackson’s § 2255 motion with prejudice was


     1
      The fact that Jackson filed a motion for dismissal rather
than a notice of dismissal is not relevant. Williams v. Ezell, 531
F.2d 1261, 1263 (5th Cir. 1976). Jackson cited Rule 41(a)(1) in
his motion and the motion was filed prior to any response by the
Government.

                                     - 3 -
void.    Moreover, that part of the order advising Jackson that he

has to receive authorization from this Court under § 2244 prior to

filing another § 2255 motion was in error because a voluntary

dismissal is not an adjudication on the merits.                   See United

States v. Sosa, 364 F.3d 507, 510 n.2 (4th Cir. 2004).

            Jackson’s Rule 60(b)(4) motion challenging the district

court’s June 4, 1997, dismissal order was not untimely.              Motions

attacking a judgment as void under Rule 60(b)(4) have no time

limit.   See Jackson v. FIE Corp., 302 F.3d 515, 523-24 (5th Cir.

2002).    A void judgment does not acquire validity merely by the

passage of time.     Id. at 523 n.23; see also Foster v. Arletty 3

Sarl, 278 F.3d 409, 414 (4th Cir. 2002) (while not specifically

adopting this rule, this Court has cited with agreement cases

finding that a Rule 60(b)(4) motion “contains little, if any, time

limit.”).

            Thus,   the   district   court   order   dismissing    Jackson’s

§ 2255 motion was void because Jackson’s motion for dismissal under

Rule 41(a)(1)(i) ended the case when the motion was filed.               The

district court should have granted Jackson’s Rule 60(b)(4) motion.

The practical result of the district court’s order dismissing his

§ 2255 motion with prejudice is that Jackson may be barred from

raising any of those claims in a subsequent § 2255 motion.                In

addition, Jackson must seek authorization from this court to file




                                     - 4 -
a § 2255 motion despite the fact he has not had one properly

dismissed on the merits.

          Accordingly, we vacate the district court’s order denying

the Rule 60(b)(4) motion and remand to the district court.       On

remand, the district court should grant the Rule 60(b)(4) motion

and vacate its June 4, 1997, order.   Jackson’s § 2255 motion should

be considered dismissed without prejudice as a result of his Rule

41(a)(1)(i) motion seeking a voluntary dismissal.2      We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.



                                               VACATED AND REMANDED




     2
      As a result, Jackson will not need authorization from this
court to file a § 2255 motion. However, this decision will have no
effect on whether any future § 2255 motion filed by Jackson will be
timely.

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