Opinion
NO. 1:16-CV-55-DMB-DAS
02-21-2017
JASON HOLLOWAY PETITIONER v. STATE OF MISSISSIPPI RESPONDENT
ORDER DISMISSING CASE
On April 4, 2016, Jason Holloway, proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Doc. #1. On July 1, 2016, the State of Mississippi filed a motion to dismiss Holloway's petition for failure to exhaust, state a claim, or meet the statute of limitations. Doc. #7. On July 18, 2016, Holloway filed a "Motion to Withdraw and Reply to Motion to Dismiss," seeking dismissal of his petition to present additional claims in state court. Doc. #8. Though receiving notice of Holloway's motion, the State has filed no response or opposition, and the time within which it could have done so has long passed.
"Motions for voluntary dismissal generally 'should be freely granted unless the non-moving party will suffer some plain legal prejudice other than the mere prospect of a second lawsuit.'" Test Masters Educ. Servs., Inc. v. Robin Singh Educ. Servs., Inc., 799 F.3d 437, 448 (5th Cir. 2015) (quoting Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002)). Because the State has not opposed Holloway's motion and thus failed to identify any legal prejudice it will suffer if Holloway's motion is granted, the Court finds that granting Holloway's motion will pose no plain legal prejudice to the State.
Accordingly, Holloway's motion [8] is GRANTED; the State of Mississippi's motion to dismiss [7] is DENIED as moot; and this case is DISMISSED without prejudice.
SO ORDERED, this 21st day of February, 2017.
/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE
See Payne v. Rader, No. CIV.A. 11-2767, 2012 WL 214554, at *1 (E.D. La. Jan. 24, 2012) (applying Elbaor to motion for voluntary dismissal of habeas petition where respondent only filed response to petition).