Opinion
Civil Action No. 00-11784-RGS.
December 3, 2001
On November 21, 2001, petitioner Jerome A. Napolitano ("petitioner") filed a motion to withdraw the above styled petition for writ of habeas corpus. In the alternative, petitioner moves to dismiss the petition without prejudice. (Docket Entry # 36).
Petitioner submits that his worsening and unforseen medical condition make it difficult to litigate the present petition. He seeks voluntary dismissal in order to focus his energy on his pending attempts in state court to procure state court documents and to obtain a ruling on a motion to dismiss indictments and to reduce the verdict to manslaughter under Rule 25(b)(2) ("Rule 25"), Mass.R.Crim.P. He represents that he filed the latter proceeding in the Massachusetts Superior Court Department (Suffolk County) in September 1998 and that it remains pending. He also moves to withdraw the petition in order to exhaust state court remedies relative to the present petition.
This court expresses no opinion as to whether, pursuant to 28 U.S.C. § 2244(d)(2), the state court motion to dismiss tolls the one year grace period, except to recognize the potential applicability of the provision.
Respondents Michael T. Maloney, Commissioner of the Department of Correction, and Edward M. Ficco, Superintendent of Southeastern Correctional Center in Bridgewater, Massachusetts ("respondents") oppose dismissal. (Docket Entry # 37). They view petitioner's motion as a "back door attempt" to obtain the relief this court denied petitioner when, by Order dated October 10, 2001, this court declined to stay these proceedings to allow petitioner to exhaust state court remedies. Rather, this court allowed petitioner his alternative request for an extension of time to respond to respondents' pending motion to dismiss on exhaustion grounds and further ordered respondents to file a brief on the merits in opposition to the petition. Respondents presently have up to and including December 19, 2001, to file that brief.
The motion to dismiss seeks dismissal solely on the procedural basis of petitioner's failure to exhaust three of the ten grounds in the petition. Such a dismissal would, of course, also be without prejudice.
DISCUSSION
Applying Rule 41(a)(2) ("Rule 41(a)"), Fed.R.Civ.P., in this habeas proceeding is not inconsistent with the Rules Governing Section 2254 Cases in the United States District Courts. See Rule 11, 28 U.S.C. foll. § 2254. Indeed, "numerous courts" allow voluntary dismissals under "Rule 41(a)(2) in habeas cases under § 2254." Doster v. Jones, 60 F. Supp.2d 1258, 1258 (M.D.Ala. 1999) (collecting cases); accord Barron v. Snyder, 2001 WL 65735 at * 1 (D.Del. Jan. 10, 2001) (citing cases from tenth and fifth circuits applying Rule 41(a)(2) to habeas proceedings).
A decision under Rule 41(a)(2) is "committed to the discretion of the court." Holbrook v. Andersen Corporation, 130 F.R.D. 516, 519 (D.Me. 1990) (discussing Rule 41(a)(2)). The "principal consideration is whether the dismissal would prejudice the defendant." Schwarz v. Folloder, 767 F.2d 125, 129 (1st Cir. 1985) (if dismissal unfairly prejudices a defendant, it should be denied); see also Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir. 1993) ("`It is prejudice to the opposing party, rather than the convenience to the court, that is to be considered in passing on a motion for dismissal'").
In deciding whether to allow "a Rule 41(a)(2) motion, courts typically look to `the defendant's effort and expense of preparation for trial, excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, insufficient explanation for the need to take a dismissal, and the fact that a motion for summary judgment has been filed by the defendant.'" Doe v. Urohealth Systems, Inc., 216 F.3d 157, 160 (1st Cir. 2000); see, e.g., Clark v. Tansy, 13 F.3d at 1411 (applying first three factors in habeas proceeding).
The fact that respondents filed an answer is "patently insufficient" to justify denial of the motion. Alamance Industries, Inc v. Filene's, 291 F.2d 142, 147 (1st Cir. 1961). Filing an answer is a circumstance which calls the rule into play and distinguishes it from Rule 41(a)(1). See Alamance Industries, Inc v. Filene's, 291 F.2d at 147.
The efforts expended by respondents are not excessive and do not appear significantly greater that the efforts deemed insufficient in Tansy. Like the respondents in Tansy, respondents prepared and filed a motion to dismiss for lack of exhaustion. Although respondents' 12 page supporting memorandum is longer than the four page supporting memoranda for the two motions to dismiss in Tansy, the law is not complex. Likewise, the procedural facts summarized in respondents' memorandum are not inordinately complex.
Respondents also prepared and submitted various state court documents in filing the answer and responding to this court's Order (Docket Entry # 19). Such effort, which involves obtaining and compiling the state court record, is not substantial.
By motion filed November 7, 2001, counsel for respondents acknowledged his inability to turn his attention to the merits brief ordered by this court. He therefore sought an extension of time to December 19, 2001, in which to compile the brief. In short, the first factor does not evidence much, if any, prejudice.
As to excessive delay and lack of diligence on the part of petitioner, to date he has not filed a response to the motion to dismiss. Instead, he filed and this court allowed a number of extensions of time to file the response. On the other hand, petitioner's medical condition, which deteriorated this summer, interferes with his ability to compile a response. Petitioner also supported each request for an extension with a sufficient explanation for the delay. According to petitioner, prison officials confiscated his state court records when he moved from Bay State Correctional Center in 1998 thereby hampering his ability to present the petition. Moreover, petitioner has diligently been attempting to procure such documents in various court proceedings. Given such efforts and petitioner's circumstances, he has neither acted in a dilatory manner nor been less than diligent in prosecuting this petition.
Petitioner also proffers a sufficient explanation for the voluntary dismissal. Exhaustion of state court remedies is a prerequisite to federal habeas review. Williams v. Clarke, 82 F.3d 270, 273 (8th Cir. 1996) (recognizing that voluntary dismissal was not used as "stalling tactic . . . because available state court remedies must be exhausted before" allowance of a habeas petition). Petitioner justifiably seeks to return to state court and focus his energy on obtaining necessary state court records and exhausting ground ten.
Finally, respondents have not filed the merits brief ordered by this court. This court's recommendation forecloses the need for respondents to file such a brief. The motion to dismiss for failure to exhaust more than likely did not involve an excessive amount of time and effort to prepare. The reasons supporting denial of the stay do not warrant denial of petitioner's motion to dismiss. In this court's discretion, therefore, dismissal without prejudice under Rule 41(a)(2) is appropriate.
In order to avoid any unnecessary expenditure of time and effort on the part of respondents, the clerk shall telephone respondents' counsel today to advise him of the present ruling on petitioner's motion to dismiss.
CONCLUSION
This court therefore RECOMMENDS that petitioner's motion to dismiss the petition without prejudice (Docket Entry # 36) be ALLOWED and that this action be DISMISSED without prejudice.
Any objections to this Report and Recommendation must be filed with the Clerk of Court within ten days of receipt of the Report and Recommendation to which objection is made and the basis for such objection. Any party may respond to another party's objections within ten days after service of the objections. Failure to file objections within the specified time waives the right to appeal the district court's order. United States v. Escoboza Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986).