Opinion
Civil Action No. 05-cv-01117-OES.
November 1, 2005
ORDER DISMISSING CASE
This matter is before the Court on the response to the order to show cause and the motion to dismiss the application for a writ of habeas corpus that Applicant Angelo Benzor submitted pro se and the Court filed on October 26, 2005. In the documents, which were submitted in response to the September 28, 2005, order to show cause, Mr. Benzor informs the Court that he wants to dismiss voluntarily and without prejudice his habeas corpus application in order to exhaust state remedies.
The Court will treat the October 26, 2005, response and motion to dismiss together as a notice of voluntary dismissal pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. Rule 41(a)(1) provides that "an action may be dismissed by the plaintiff without order of court (l) 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." No response has been filed by Respondents in this action. A voluntary dismissal pursuant to Rule 41(a)(1) is effective immediately upon the filing of a written notice of dismissal, and no subsequent court order is necessary. See J. Moore, Moore's Federal Practice ¶ 41.02(2) (2d ed. 1995); Hyde Constr. Co. v. Koehring Co., 388 F.2d 501, 507 (10th Cir. 1968). The notice closes the file. See Hyde Constr. Co., 388 F.2d at 507. Accordingly, it is
ORDERED that the response to the order to show cause and the motion to dismiss the application for a writ of habeas corpus that Applicant Angelo Benzor submitted pro se and the Court filed on October 26, 2005, are treated as a notice of voluntary dismissal pursuant to Fed.R.Civ.P. 41(a)(1). It is
FURTHER ORDERED that the voluntary dismissal is effective as of October 26, 2005, the date the notice of voluntary dismissal was filed in this action. It is
FURTHER ORDERED that the habeas corpus application is denied and the action is dismissed without prejudice. It is
FURTHER ORDERED that the motions for extension of time and for trial transcripts filed on October 26, 2005, are denied. It is
FURTHER ORDERED that judgment is entered in favor of Respondents and against Applicant.