Opinion
No. 3-05-CV-1489-P.
August 17, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner T.C. Anderson, appearing pro se, has filed a motion to withdraw his application for writ of habeas corpus. As grounds for his motion, petitioner acknowledges that he has a state writ pending before the Texas Court of Criminal Appeals and must exhaust his state remedies before seeking federal habeas relief.
Fed.R.Civ.P. 41(a)(1) provides that "an action may be dismissed by the plaintiff without order of court by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs . . ." FED. R. CIV. P. 41(a)(1). Respondent has not yet served an answer or a motion for summary judgment. Consequently, petitioner is entitled to a dismissal without prejudice.
RECOMMENDATION
Petitioner's motion to dismiss should be granted. This case should be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(a)(1).
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party may file written objections to the recommendation within 10 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).