                         NOT RECOMMENDED FOR PUBLICATION

                                           No. 17-4001


                          UNITED STATES COURT OF APPEALS                                 FILED
                               FOR THE SIXTH CIRCUIT                               May 30, 2018
                                                                               DEBORAH S. HUNT, Clerk
  In re: WILLIE MOORE,                                    )
                                                          )
          Movant.                                         )
                                                                            ORDER




BEFORE:        NORRIS, ROGERS, and STRANCH, Circuit Judges

       Willie Moore, a federal prisoner proceeding pro se, moves for leave to file a second or

successive motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, pursuant to

28 U.S.C. § 2244. Moore previously filed a prior § 2255 motion but voluntarily withdrew it, before

a final merits decision issued from the district court but after receiving two reports and

recommendations from a magistrate judge stating that the motion had no merit and recommending

that it be dismissed with prejudice. Though a prior petition that was not dismissed “on the merits”

ordinarily will not render a subsequent petition successive, see In re Cook, 215 F.3d 606, 608 (6th

Cir. 2000), a withdrawn petition can still count as a prior petition under § 2244(b) where, as here,

it is obvious that the withdrawal was induced by the petition’s impending failure on the merits.

Under the circumstances, Moore’s § 2255 motion is accordingly a successive one, and Moore

neither argues that a new rule of constitutional law applies to his case nor that he possesses newly-

discovered evidence. We therefore deny Moore’s petition for leave to file the § 2255 motion.

       In 2004, Moore pleaded guilty to armed bank robbery, in violation of 18 U.S.C. § 2113(a)

and (d), and use of a firearm in a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

The district court found that Moore was subject to a sentence enhancement as a career offender
No. 17-4001, In re: Willie Moore


pursuant to USSG § 4B1.1, because Moore had prior convictions under Indiana law for burglary,

Ind. Code Ann §§ 35–43–2–1, criminal deviate conduct, Ind. Code Ann §§ 35–42–4–2, and

battery, Ind. Code §§ 35–42–2–1. After the Supreme Court’s decision in United States v. Booker,

543 U.S. 220 (2005), the district court resentenced Moore to an aggregate term of 221 months of

imprisonment, a sentence that Moore continues to serve.

        In 2016, Moore filed a § 2255 motion to vacate in the district court, arguing that he was no

longer a career offender in light of Johnson v. United States, 135 S. Ct. 2551 (2015). Moore was

represented in this motion by the same counsel as in his original trial, and the district court assigned

the motion to a magistrate judge. Following a stay pending the Supreme Court’s decision in

Beckles v. United States, 137 S. Ct. 886 (2017), the magistrate judge issued a report recommending

that Moore’s claim be dismissed with prejudice, because Beckles precluded a claim like Moore’s.

Moore filed objections to this report and recommendation, arguing that his previous Indiana

battery and criminal deviate conduct convictions were not categorically crimes of violence. The

magistrate judge issued a supplemental report and recommendation, indicating that these

objections were also without merit. In particular, because Moore did not have any claim under

Johnson, the motion was untimely as after the one-year post-final judgment deadline for a motion

to vacate a sentence under § 2255, and Moore’s reliance on Descamps v. United States, 133 S. Ct.

2276 (2013), did not warrant restarting the one-year period under 28 U.S.C. § 2255(f)(3) because,

among other things, Descamps has never been held to apply retroactively. Moore then filed an

unopposed motion to withdraw his § 2255 motion, and the district court allowed the § 2255 motion

to be voluntarily dismissed.

        Moore subsequently filed this current motion, contending that he is entitled to relief

because his trial counsel failed to argue that the Indiana burglary statute under which Moore was



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previously convicted was allegedly divisible and non-violent in some applications. Moore further

argues that this motion is a first and not a successive § 2255 motion and that he is therefore not

bound by the restrictions of § 2244(b), because the district court did not finally adjudicate the

merits of Moore’s previous § 2255 motion.

       Moore’s previous motion did count as a prior § 2255 motion, however. Moore, who was

represented by counsel, moved to withdraw his previous motion directly on the heels of two reports

and recommendations identifying no merit in his claims. It is therefore not enough to say that

Moore never formally received a final adjudication of his previous motion, because this was the

intentional consequence of the strategy Moore and his counsel chose. It would contravene the

restrictions imposed by § 2244(b) to allow Moore to treat the magistrate judge as an editor for a §

2255 motion before § 2244(b)’s restrictions kicked in.

       This conclusion that a voluntarily dismissed prior motion can, under certain circumstances,

still count as a prior motion under § 2244(b) is supported by the reasoning of three other circuits

that have considered similar issues. In Felder v. McVicar, 113 F.3d 696 (7th Cir. 1997), the

Seventh Circuit held that a petition was successive where a prisoner had voluntarily dismissed his

first petition, while represented by counsel, after acknowledging that he could not carry his burden

of proof at an evidentiary hearing. As the Felder court reasoned, such petitions count as successive

because “a petitioner for habeas corpus cannot be permitted to thwart the limitations on the filing

of second or successive motions by withdrawing his first petition as soon as it becomes evident

that the district court is going to dismiss it on the merits.” Id. at 698. Subsequently, in Garrett v.

United States, 178 F.3d 940, 942–43 (7th Cir. 1999), the Seventh Circuit distinguished Felder and

held that a § 2255 motion filed after two prior motions had been voluntarily dismissed was not

second or successive. The first motion was withdrawn after the government had mailed its



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response, but before the petitioner had received it, and before the district court engaged in

substantive review. Id. at 941–43. The second motion was withdrawn several months after it was

filed, but before any response or review occurred. Id. Thus, unlike the petitions in Felder, neither

prior motion had been adjudicated on the merits, and the petitioner neither conceded defeat nor

withdrew the prior motions to obtain a tactical advantage. Id. at 943; see also Potts v. United

States, 210 F.3d 770, 770-71 (7th Cir. 2000) (holding that a petitioner’s voluntary withdrawal of

a prior petition after receiving a strongly-argued government response brief, conferring with his

attorney, and apparently realizing the petition was “doomed” rendered a subsequent petition

successive under § 2244).

       The Fourth Circuit has implied the same thing in dictum: though a voluntarily withdrawn

petition “generally does not count for purposes of the ‘second or successive’ rule,” it may count

where it is “apparent that [the petitioner] withdrew his motion to obtain a tactical advantage in the

face of impending defeat.” Provenzale v. United States, 388 F. App’x 285, 287 (4th Cir. 2010)

(holding that the petitioner’s second-in-time § 2255 motion was not successive because he neither

withdrew his first motion to gain a tactical advantage nor conceded that it was without merit).

Likewise, the Second Circuit has indicated that a voluntarily dismissed motion may still count as

a prior motion where “the circumstances surrounding withdrawal clearly and objectively indicate

that the petitioner knows his or her motion is meritless,” although it found that the circumstances

in that case did not clearly compel such a conclusion. Thai v. United States, 391 F.3d 491, 495–

96 (2d Cir. 2004). Here, however, the reason for Moore’s withdrawal is clearly apparent: Moore’s

attempt to evade the result that was inevitably coming to him.

       Moore contends that he withdrew his prior motion based not a recognition of its lack of

merit, but rather because the reports and recommendations caused Moore to believe that his



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counsel had been ineffective. But, on these facts, this is a distinction without a difference. Even

on Moore’s telling, he withdrew his prior motion because he was aware that it presented no claims

on which he could win. Moore therefore does nothing to rebut the obvious interpretation of these

facts, that his withdrawal was induced by the magistrate’s negative merits evaluations of the

motion. Moore’s withdrawal following the magistrate’s evaluation leaves him still subject to

§ 2244(b)’s restriction on successive petitions.

         This conclusion does not mean that any voluntarily withdrawn petition must count as a

prior petition under § 2244. Courts have also recognized that a petition withdrawn for curable

procedural reasons—such as failure to pay filing fees or non-exhaustion of state remedies—does

not trigger § 2444(b). See Haro-Arteaga v. United States, 199 F.3d 1195, 1196–97 (10th Cir.

1999).1 In Haro-Arteaga, the petitioner had previously withdrawn two prior § 2255 motions—

both after the government had responded. Id. at 1195. The petitioner withdrew one of the motions

because “several of his grounds for relief [were] improperly presented” and because the motion

“omit[ted] other valid grounds which [the petitioner] would also care to raise.” Id. The Tenth

Circuit concluded that the third § 2255 motion was not successive “because none of the earlier

motions filed by [the petitioner] conceded any claim or were decided on the merits or after the

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




1
  According to the Tenth Circuit: “The following types of cases have been held not to be subject to the gatekeeping
restrictions: where the previous petitions have been dismissed without prejudice for failure to exhaust state
remedies, see, e.g., McWilliams v. Colorado, 121 F.3d 573, 575 (10th Cir. 1997); where the first post-conviction
remedy was used solely to reinstate the right to a direct appeal, see, e.g., United States v. Scott, 124 F.3d at 1330;
where the first petition was dismissed for failure to pay the filing fee, see, e.g., Benton v. Washington, 106 F.3d 162,
164-65 (7th Cir. 1996); where the first § 2255 motion is dismissed without prejudice because it was filed while the
direct criminal appeal was pending, see Flores v. United States, No. 97-8080, 1997 WL 525596 (8th Cir. 1997)
(unpublished disposition); and where the first petition is returned for being insufficient for failing to comply with the
Rules Governing Section 2244 Cases or Rules Governing Section 2255 Proceedings, see O’Connor v. United
States, 133 F.3d 548, 550 (7th Cir. 1998).” Haro-Arteaga, 199 F.3d at 1196.


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       The Supreme Court has also held that a prior petition dismissed as prematurely raised does

not make a following petition second or successive one under § 2244(b), see Stewart v. Martinez-

Villareal, 523 U.S. 637, 643–44 (1998); see also In re Coley, 871 F.3d 455, 457 (6th Cir. 2017),

although Stewart did not explicitly deal with voluntary withdrawal. Similarly, the Seventh Circuit

has held that a petition does not count as a prior petition if it is withdrawn before receiving any

governmental response brief. See Garrett, 178 F.3d at 943. Because Moore was represented by

counsel and the circumstances of his case clearly indicate that his withdrawal was driven by his

recognition of the substantive futility of his earlier motion, the motion counts as a prior § 2255

motion and triggers § 2244(b), restricting this current petition by Moore. That Moore’s motion

may have been dismissed without prejudice does not, on these facts, alter this conclusion. See

Felder, 113 F.3d at 698.

       Because Moore’s petition is successive, we must apply the restrictions of §§ 2244(b) and

2255(h), and Moore does not fall within either of § 2255(h)’s exceptions for successive petitions.

The thrust of Moore’s claim in this motion is that his counsel was ineffective because the attorney

failed to argue, pursuant to Taylor v. United States, 495 U.S. 575 (1990), that Moore’s previous

conviction for Indiana burglary should not have counted as a predicate crime for enhancement

under the Sentencing Guidelines. Moore’s argument is not based on a new and retroactive rule of

constitutional law articulated by the Supreme Court. See 28 U.S.C. § 2255(h)(2). The claim is

also not one based on newly discovered evidence. See 28 U.S.C. § 2255(h)(1). The alleged

ineffectiveness here occurred at Moore’s sentencing, twelve years ago. Because Moore’s petition

does not fall into either of the permissive categories, it is barred under §§ 2244(b) and 2255(h).




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No. 17-4001, In re: Willie Moore


       The petition for leave to file a § 2255 motion is denied.

                                             ENTERED BY ORDER OF THE COURT




                                             ______________________________________
                                             Deborah S. Hunt, Clerk




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