Case No.: 5:07cv184/SPM/EMT.
October 10, 2007
REPORT AND RECOMMENDATION
This matter is before the court on Petitioner's Motion to Withdraw (Doc. 9), which shall be constructed as a notice of voluntary dismissal of his habeas petition filed pursuant to 28 U.S.C. § 2254 (Doc. 1). Petitioner requests dismissal of this habeas action without prejudice to his refiling at a future time. As grounds for dismissal, Petitioner states he has found "more information that he believes would be more helpful to his cause" (Doc. 9 at 1).
Rule 41(a)(1) of the Federal Rules of Civil Procedure provides that an action may be dismissed without an order of the court by filing a notice of dismissal at any time before the adverse party serves an answer, or files a motion for summary judgment. Because Respondent has not yet served an answer in the instant case, it is clear that Petitioner is automatically entitled to a voluntary dismissal at this time. The dismissal should be without prejudice to Petitioner's refiling the petition when his all of his claims have been exhausted. However, Petitioner should be aware of 28 U.S.C. § 2244(d), which establishes a one-year period of limitation for applications for writs of habeas corpus challenging state court judgments. The one-year period normally runs from date upon which the conviction became final, see § 2244(d)(1), but the time during which a "properly filed" application for state post-conviction or other collateral review is pending is not counted. See § 2244(d)(2); Artuz v. Bennett, 531 U.S. 4, 121 S. Ct. 361, 148 L. Ed. 2d 213 (2000).
Accordingly, it is respectfully RECOMMENDED:
That Petitioner's Motion to Withdraw (Doc. 9), construed as a notice of voluntary dismissal, be GRANTED and this action dismissed without prejudice.
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations may be filed within ten (10) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only . A copy of objections shall be served upon the magistrate judge and all other parties. Failure to object may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts . 858 F.2d 698, 701 (11th Cir. 1988).