Opinion
2:01-CV-0260.
July 27, 2001.
REPORT AND RECOMMENDATION TO GRANT PETITIONER'S MOTION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS
On July 2, 2001, petitioner JOHN DAVID SAPP filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging the result of a May 2, 2001 disciplinary proceeding. On July 18, 2001, petitioner communicated to the Clerk of the Court in the form of a letter his desire that his case be dismissed. Petitioner's letter has been construed by the Court to be a Motion to Dismiss Without Prejudice.
It is the opinion of the undersigned that petitioner's request to have his petition dismissed should be granted, and that the petition for a writ of habeas corpus be dismissed without prejudice. Petitioner is advised, however, that dismissal without prejudice does not guarantee that any subsequently filed petitions for habeas relief will be heard or determined on the merits, and is further advised that any dismissal without prejudice will not guarantee that any subsequent filed petition will not be barred by the one-year statute of limitations.
RECOMMENDATION
It is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that petitioner's Motion to Dismiss be GRANTED, and the petition for a writ of habeas corpus filed by petitioner JOHN DAVID SAPP be DISMISSED without prejudice.
INSTRUCTIONS FOR SERVICE and NOTIFICATION OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, return receipt requested.
Any party who wishes to make objections to this Report and Recommendation must make such objections within fourteen (14) days after the filing of such Report. See 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts; Fed.R.Civ.P. 5(b), 6(e). Any such objections shall be in writing and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Any objecting party shall file written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in the original Report and Recommendation shall bar him, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.