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 No rman Rejda’s motion filed under 28 U.S.C. § 2255 as second or s uccessive and unauthorized. The court the refore dismissed the motion for lack of jurisdiction . Rejda appeals, proceeding pro se. The question presented is whether a previous § 2255 motion filed by Rejda, w hich he voluntarily dismissed, counts as a “first” s uch motion, making his second-i n-time § 2255 motion second or successive and therefor e subject to the authorization requirements in

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 16, 2019
Elisabeth A. Shumaker Clerk of Court2 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 applic ation of the career offender gui deline because he had two prior convictions for crimes of violence. Rejda did not fi le a direct appeal. The district court subsequently redu ced his sentence to 188 months’ imprisonment. A. Section 2255 Motion Filed in 2016 Rejda filed a counseled § 2255 motion in 2016 (2016 Motion), ar guing that he was entitled to relief under Johnson v. United States , 135 S. Ct. 2551 (2015). Johnson voided, in part, the definiti on of a qualifying “violent felon y” 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 potentia l risk of physical injury to an other,” 18 U.S.C. § 924(e)(2)(B)(ii)—violated th e constitutional prohibition agai nst vague criminal laws, and that an increased sente nce based on that clause viola tes 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 re sidual clause in the career offender guideline, which, h e contended, was likewise un constitutionally3 vague. After briefing was comple te, 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 resi dual clause in the career offender guidelin e. The district court stated that the Supreme Court’ s decision “will likely be determ inative of [Rejda’s] pending § 2255 motion.” Order S taying Further Proceedings Pend ing 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 C ourt ultimately ruled against Rejda’s position in Beckles v. United States , 137 S. Ct. 886, 892 (2017), conc luding that the sentencing guidelines “are not subject to a vagueness challenge under the Due Process Clause” because “they merely guide the e xercise of a court’s discretion in choosing an appropriate sentence within the statutory range.” Following the decision in Beckles , the district court di rected the parties to submit status reports on Rejda’ s 2016 Motion. The court’s orde r stated: To avoid the unnecessary waste o f 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 R espondent file with this Cour t 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-000 94-ABJ (D. Wyo. Mar. 9, 2017), ECF No. 11. The government filed a combined status report and motion to dis miss, arguing that, in light of Beckles , Rejda’s 2016 Motion was untim ely. 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 Civ il Procedure 41 seeking to volu ntarily dismiss his4 2016 Motion, stating that he “no longer seeks re lief through § 2255.” Motion for Voluntary Dismissal at 1, No. 2 :16-cv-00094-ABJ (D. Wyo. Mar. 2 0, 2017), ECF No. 13. The district court granted Rejda’s motion for volu ntary dismissal “for good cause shown,” noting his “rep resentation that he no longerseeks relief through § 2255.” Order Granting Voluntar y Dismissal of 28 U.S.C. § 225 5 Motion at 1, No. 2:16-cv-00094-ABJ (D. Wyo. A pr. 13, 2017), ECF No. 14. The dismissal order did not specify that the dismi ssal was with prejudice. The cou rt 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 wh ich he alleged ineffective assistance of couns el and asserted another claim ch allenging his sentence. The government responde d that the district court lacked jurisdi ction to consider Rejda’s second-in-time § 2255 mo tion because it was second or s uccessive and unauthorized. The district court agreed. Fo llowing the reasoning in publishe d and unpublished cases from other circ uits, it held that Rejda’s 201 6 Motion counted as a first § 2255 motion. In reachin g this conclusion, the court co nsidered the circumstances surrounding the dis missal of Rejda’s previous mot ion, including his representation by counsel in tha t case. It reasoned that, by m oving to voluntarily dismiss his 2016 Motion, Rejda “appear[ed] to have realized (th ough he did not explicitly acknowledge) the moti on was doomed considering the S upreme Court’s5 holding in Beckles and [the district court’s] la nguage in its order requesting a status update.” R., Vol. 1 at 71. The district court therefore di smissed Rejda’s 2018 Motion for lack of jurisdiction because i t was second or succes sive and he had notobtained this court’s authorization to file it. It gran ted Rejda a certificate of ap pealability 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 c ourt’s dismissal of Rejda’s 201 8 Motion for lack of jurisdiction and any u nderlying findings of fact for cl ear 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 Moti on 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 pa rticular facts of a case, thata voluntarily dismissed § 2255 motion counts as a first such motion. But he argues tha t the facts in this case do not support the dist rict court’s holding. In particular, Rejda argues thathe never explicitly conceded t hat his 2016 Motion lacked merit, nor did he or his counsel otherwise c learly indicate a belief that the motion was meri tless. Rather, he moved to volu ntarily dismiss his 2016 Motion under Rule 41(a)(2), w hich permits the district cou rt to dismiss an action without prejudice even aft er the filing of an answer. R ejda asserts that his6 counsel advised that the moti on 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 succes sive and unauthorized. He con tends further that the dismissal of his 2016 Motion was without prejudice because the district court’s dismissal order did not sti pulate that the dismissal was with prejudice. See Fed. R. Civ. P. 41(a)(2) (“Unless the ord er states otherwise, a dismiss al under this paragraph (2) is without prejudi ce.”). Rejda maintains that t he facts in this case present an issue of first impress ion in this circuit and that n one of the decisions relied on by the district court in dis missing his 2018 Motion are bind ing on this court. The government acknowledges that, in some circumstances, a firs t-in-time § 2255 motion that is voluntarily dismissed does not count as a “first” motion, such that a later motion is not sec ond or successive. But it conten ds that, when a voluntary dismissal occurs at a point in the proceedings when i t has become clear that a § 2255 motion is “doomed”—thatis, when “the handwriting is o n the wall”— treating the dismissal as one w ithout prejudice and not countin g 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 (interna l quotation marks omitted). The government argues that the c ircumstances surrounding Rejda’ s motion to voluntarily dismiss his 2016 Moti on support the district court’ s holding that it counts as a first § 2255 motion. It c ontends there is no question tha t the Supreme Court’s decision in Beckles rendered Rejda’s Johnson -based challenge to his career offender7 sentence meritless. And it assert s that the 2016 Motion was co ntentiously litigated for nearly a year until Rejda p romptly abandoned it when its ou tcome was inevitable in light of Beckles . Thus, despite his failure to re ference that decision as the basis for his Rule 41 motion to voluntari ly dismiss his 2016 Motion, the sequence of events demonstrates that Beckles was the sole predicate for th at motion. The government further contends that, but for R ejda’s voluntary dismissal moti on, the district court would have granted the governme nt’s motion to dismiss, resultin g 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] priorhabeas 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), w e provided examples of the type s of cases where a prisoner’s initial filing does notcount as a “first” motion, i ncluding a motion used solely to reinstate a prisoner’s right to a direct appeal, a mo tion dismissed without prejudice because the prisoner’s direct appeal was still pendin g, and a motion dismissed for failure to pay t he filing fee. We then considere d 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 “b ecause none of the earlier8 motions filed by [the prisoner] c onceded any claim or were deci ded on the merits or after the district court enga ged 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 pris oner’s previous habeas applicat ion as a first application where his motion to withdraw it included “an admiss ion of defeat”). And although the government argues th at Rejda’s 2016 Motion would h ave been dismissed following Beckles but for the district cour t’s grant of his voluntary dismissal motion, the 2016 Moti on was ultimately not adjudicate d on the merits. See Haro-Arteaga , 199 F.3d at 1197. Further, alt hough the 2016 Motion was liti gated through full briefing, the distr ict court did not engage in sub stantive review. See id. But this court has not yet deci ded whether a § 2255 motion thatwas voluntarily dismissed under Rul e 41—ostensibly without prejudic e but under circumstances like thos e presented here—counts as a first § 225 5 motion. 1 The

1 We have held, under similar circ umstances, that a district cou rt did not abuse its discretion in denying a prisoner’s motion to withdraw without prejudice his habeas application filed unde r 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 pe tition by the district court, it came afte r the magistrate had filed his [proposed finding s and recommended disposition]. Hence, although the final resolution o f the matter was not set in conc rete at the time the motion to withdraw was f iled, there was nonetheless so me rather9 closest decision from another circuit is Potts v. United States , 210 F.3d 770, 770 (7th Cir. 2000), in which the pr isoner’s § 2255 motion “was met by a brief in opposition arguing in detail that the motion lacked merit.” Af ter the prisoner and his counsel conferred about the merit s, they moved to withdraw the motion, and that motion was granted. Id. The district court subseque ntly dismissed the prisoner’s second § 2255 motion. Id. at 771. On appeal, the c ourt noted the prisoner was assisted by counsel [in his first motion], filed a competent motion, and then appears to have realized (though unlik e [the prisoner in Felder ] he did not acknowledge) that in light o f the government’s brief in opp osition, the motion was doomed. In these circumstances, it would be unreali stic to treat the dismissal as tantamount to arefusal to accept a filing bec ause of formal deficiencies. He had his opport unity to receive a decision on the merits; he flinched, seeing the handwriting on the wall. Id

. Another circuit has similarly he ld that “the reasons for which a petitioner withdraws a § 2255 petition shoul d govern the analysis of wheth er that petition counts for successive purposes, a t 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 concl uded, “This approach does not re quire difficult inquiries into the subjective in tent of the petitioner. It sim ply requires a determination of whether the c ircumstances surrounding withdraw al clearly and

clear handwriting on the wall in the form of the magistrate’s r eport. Under such circumstances, the district court did not abuse its discre tion 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 pe titioner knows his or her motio n is meritless.” Id. (citing Potts with approval). Applying this standard, the court concluded that the circumstan ces in Thai did not clearly indicate that the pri soner withdrew his § 2255 moti on because it was meritless. Id. at 496. Emphasizing the prisone r’s pro se status and his poorEnglish skills, the court held that the prisoner’s statements in withdr awing his § 2255 motion were instead akin to a concession that the motion “was the artl ess effort of a layperson without legal training.” Id. (internal quotation mark s omitted). In contrast, had the prisoner been representedby counsel, the court said it might have weighed the timing of his withdrawal ( after the government had responde d) 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 circui ts’ 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 c ounsel. Second, the timing of his motion for voluntary dismissa l clearly and objectively indi cates 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 de cision in Beckles , which the court stated would lik ely be determinative of the 201 6 Motion; (2) the decision in Beckles , which ruled against the positi on Rejda asserted in his 2016 Motion; and (3) the district court’s order directing the partie s to file status reports “indicating their position on th e validity of the § 2255 petiti on in light of the holding11 in Beckles ,” Order Requiring Filing of Sta tus 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 ex plicitly concede that his motion was meritl ess is not determinative. See Potts , 210 F.3d at 771 (holding counseled § 2255 motion , which the prisoner withdrew f ollowing the government’s response, counted a s a first § 2255 motion despite no concession that the motion was meritless). Ind eed, Rejda does not contend that he or his counsel believed that his 2016 Motion wa s 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 2 016 Motion under Rule 41 witho ut explicitly conceding defeat, that motion w ould not be counted as a first § 2255 motion. Nor do we believe that the dismi ssal order’s silence regarding whether the dismissal was with or without p rejudice changes the outcome her e. According to Rule 41(a)(2), that silence mean s that the dismi ssal is deemed to be without prejudice. But the Federal Rules of Civil Procedure “may be ap plied” to § 2255 proceedings only “to the extent t hat they are not inconsistent with any statutory provisions or [the Rules Governi ng § 2255 Proceed ings].” 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 und er Fed. R. Civ. P. 60(b) and 15, conflicted with § 22 55’s restrictions on filing s econd or successive motions). And our consideration of the entirety of the circums tances surrounding a voluntary dismissal of a § 2255 mo tion, in determining whether it counts as a first12 such motion, counsels against a pplying this aspect of Rule 41(a )(2) to the exclusion of other relevant factors. Here , the circumstances clearly sho w 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 cour t did not err in holding that Re jda’s 2016 Motion counts as a first § 2255 motion. It therefore prop erly dismissed his 2018 Motion for lack of jurisdic tion because it was second or s uccessive and not authorized by this court. III. Conclusion The district court’s judgment is affirmed. We grant Rejda’s m otion to proceed in forma pauperis on appeal and remind him of his obligation to continue making partial payments until his appell ate filing fee has been paid i n full.

Entered for the Court Per Curiam