Opinion
NO. 4:00-CV-1551-A
September 5, 2001
ORDER
Came on for consideration the motion of petitioner, Daniel Lee Hogan, to review the record de novo or, in the alternative, for new trial. The court, having considered the motion, the record, and applicable authorities, finds that the motion should be granted. The record reflects that, on July 16, 2001, the United States Magistrate Judge issued his findings, conclusion, and recommendation and granted the parties until August 6, 2001, to serve and file, not merely place in the mail, written objections thereto. On August 2, petitioner filed his motion to voluntarily dismiss without prejudice. That same day, the court signed an order striking the motion because it did not contain a completed certificate of service as required by FED. R. CIV. P. 5(d). Thereafter, on August 9, 2001, the court dismissed the petition as untimely. On August 13, 2001, petitioner refiled his motion to voluntarily dismiss without prejudice, but the case had already been closed. Petitioner now asks the court to set aside its judgment so that the action can be dismissed without prejudice. The court finds that the motion should be granted.
The Fifth Circuit has determined that FED. R. CIV. P. 41(a), which governs voluntary dismissal, is applicable in actions brought pursuant to 28 U.S.C. § 2254. Kramer v. Butler, 845 F.2d 1291, 1294 (5th Cir. 1988). Voluntary dismissal is appropriate where a defendant has not filed an answer or a motion for summary judgment. FED. R. CIV. P. 41 (a)(1). In this case, instead of filing an answer or a motion for summary judgment, respondent had only filed a motion to dismiss. Accordingly, petitioner was entitled to voluntary dismissal without prejudice. His papers were apparently slowed down due to his incarceration.
The court ORDERS that its August 9, 2001, order and final judgment in this action be, and are hereby, vacated and set aside and that petitioner's petition be, and is hereby, dismissed without prejudice.