Opinion
Civil Action No. 05-cv-01955-OES.
November 3, 2005
ORDER DISMISSING CASE
This matter is before the Court on the letter that Applicant Akinyele Chatmon submitted pro se and the Court filed on October 28, 2005. In the letter, Mr. Chatmon informs the Court that he wants to withdraw his habeas corpus application in order to exhaust state remedies.
The Court will treat the October 28, 2005, letter 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 [applicant] without order of court (1) 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 Respondent 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 letter that Applicant Angelo Chatmon submitted pro se and the Court filed on October 28, 2005, is 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 28, 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 judgment is entered in favor of Respondent and against Applicant.