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Hensch v. United States

United States District Court, N.D. Texas, Dallas Division

March 4, 2019

RODNEY EARL HENSCH, ID # 38680-177, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.

         By Special Order 3-251, this pro se habeas case has been automatically referred for full case management. Before the Court is the Movant's Motion for Judicial Notice Pursuant to Rule 201, received September 28, 2018 (doc. 3). Based on the relevant filings and applicable law, the motion, which has been liberally construed as a motion to vacate sentence under 28 U.S.C. § 2255, should be dismissed without prejudice to the filing of any future § 2255 motion.

         I. BACKGROUND

         Rodney Earl Hensch (Movant) pleaded guilty to a felony information charging him with attempted receipt of child pornography, and was sentenced to 180 months' imprisonment by judgment entered January 5, 2010. (See No. 3:09-CR-183-L, docs. 15-18, 30.) He did not appeal or file a motion to vacate his sentence. Almost nine years after the entry of judgment, on September 28, 2018, he filed a motion requesting (1) judicial review of his conviction on grounds that this Court lacks jurisdiction in this case because the prosecutors were not properly appointed to their positions, and (2) judicial notice of the United States Constitution and federal statutes. (Id., doc. 31.) The motion expressly stated that it was not to be construed as a habeas petition or motion to vacate. (See Id. at 2.)

         By order dated October 11, 2018, Movant was notified that because his filing challenged his federal conviction and sentence, it was properly construed as a motion to vacate sentence under 28 U.S.C. § 2255. (See id., doc. 33.) The order noted that under Castro v. United States, 540 U.S. 375, 383 (2003), the Court could not recharacterize his pro se post-conviction motion as a first § 2255 motion without prior notice and warning about the consequences of that recharacterization, i.e., that any future §2255 motion would be subject to the restrictions imposed on second or successive motions. (Id.) It specifically advised Movant that he could either file an amended § 2255 motion that raised all of his challenges to his conviction and/or sentence, or he could file a notice that he intended to dismiss his motion. (Id.) The order expressly provided that dismissal of the motion would be without prejudice to the filing of any future § 2255 motion, although any future § 2255 motion could be barred by the one-year statute of limitations. (Id.)

         After almost three months from the date of the order had passed, but Movant had not filed an amended § 2255 motion or a notice of dismissal, otherwise responded to the order, or filed anything else in the case, a second order issued on January 3, 2019. (See 3:18-CV-2705-L, doc. .) The second order specifically provided that within thirty days, Movant must either file an amended § 2255 motion that raised all of his challenges to his conviction and/or sentence, or a notice that he intended to dismiss his petition. (Id.) The order again expressly provided that dismissal of the petition would be without prejudice to the filing of any future § 2255 motion, and that any future § 2255 motion could be barred by the one-year statute of limitations. (Id.) Finally, the order specifically warned that failure to comply with its terms could result in dismissal of this action. (Id.)

         More than thirty days from the date of the second order have passed, but Movant has again neither filed an amended § 2255 motion or a notice of dismissal, nor otherwise responded to the order.

         II. INVOLUNTARY DISMISSAL

         Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss an action sua sponte for failure to prosecute or follow orders of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). This authority flows from a court's inherent power to control its docket, prevent undue delays in the disposition of pending cases, and avoid congested court calendars. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962).

         Movant was given notice that his motion was being construed as a § 2255 motion, and that he could either file an amended § 2255 motion or a notice that he intended to dismiss his motion. After almost three months passed without a response, a second order was issued that gave him thirty days to either file an amended § 2255 motion or a notice that he intended to dismiss his petition. He was specifically warned that failure to do so could result in dismissal of this action. Because he failed to comply with the order and has not otherwise responded to it, his motion should be dismissed under Fed.R.Civ.P. 41(b) without prejudice to filing a future § 2255 motion, which may be barred by the one-year statute of limitations.

         III. RECOMMENDATION

         The Movant's Motion for Judicial Notice Pursuant to Rule 201, received September 28, 2018 (doc. 1), which was construed as a motion to vacate sentence under 28 U.S.C. § 2255, should be dismissed without prejudice to the filing of any future § 2255 motion (which may be barred by the one-year statute of limitations), unless the Movant files an amended § 2255 motion within the time for objecting to this recommendation, or by some other deadline set by the Court.

         SO RECOMMENDED

         INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT ...


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