Harper v. McDonough

Full title: VINCENT HARPER, Petitioner, v. JAMES R. McDONOUGH, Respondent

Court: United States District Court, N.D. Florida, Gainesville Division

Date published: Jan 9, 2008

CASE NO. 1:06-cv-254-MMP-AK (N.D. Fla. Jan. 9, 2008)

Opinion

CASE NO. 1:06-cv-254-MMP-AK.

January 9, 2008

ORDER

ALLAN KORNBLUM, Magistrate Judge

This matter is before the Court on Doc. 29, Motion for Voluntary Dismissal, by Vincent Harper. Before the Court proceeds with the processing of this motion, it feels compelled to advise Petitioner that there may be consequences to the withdrawal. For example, while the instant petition was timely filed within the one-year statute of limitations, an attempt to file another petition may be subject to dismissal as being untimely. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (one-year statute of limitations not tolled during pendency of first federal habeas petition).

Though the Court has no inherent obligation to issue this warning, see Diaz v. Secretary for Department of Corrections, 362 F.3d 698, 701-702 (11^th Cir. 2004) (where petitioner voluntarily dismisses first habeas petition, court is not required to issue Castro notice), it believes that it is a better use of judicial resources fully to advise Petitioner now that there may be repercussions to his decision than to address a timeliness issue later. In issuing this caution, the Court has not examined the merits of the instant petition, and therefore, nothing said in this Order should be interpreted as an indication that the Court believes the instant petition has merit.

Accordingly, it is ORDERED:

That no later than February 11, 2008, Petitioner shall advise the Court (1) whether he wishes to proceed with the voluntary dismissal of this action or (2) whether he wants to withdraw the motion for voluntary dismissal.

DONE AND ORDERED.