UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

NORMAN CHARLES REJDA, 

 Defendant - Appellant. 

No. 19-8015 

(D.C. Nos. 2:18-CV-00191-ABJ & 

1:09-CR-00218-ABJ-1) 

(D. Wyo.) 

_________________________________ 

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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 16, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

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 
3 

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 
4 

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 
5 

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 
6 

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 
7 

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 
8 

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 
9 

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. 
10 

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 
11 

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 
12 

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