Opinion
Case No: 2:15-cv-374-FtM-38MRM
01-30-2018
JODY C. MANN, Petitioner, v. SECRETARY, DOC and FLORIDA ATTORNEY GENERAL, Respondents.
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This matter comes before the Court on Petitioner's Notice of Voluntary Dismissal (Doc. 19) filed on February 8, 2016. Petitioner advises the Court that he "dismisses this Petition for Writ of Habeas Corpus . . . ." Id. at 1. Because Respondent filed a Response to the Petition (Doc. 14), the Court construes the notice of voluntary dismissal as a motion pursuant to Fed. R. Civ. P. 41(a) (2).
Error! Main Document Only.Habeas Corpus Rule 11 permits application of the Federal Rules of Civil Procedure to habeas proceedings "to the extent that they are not inconsistent with any statutory provisions or [the habeas] rules." Rules Governing Section 2254 Cases in the United States District Courts, R. 11.
Rule 41(a) (2), permits the Court to order a dismissal of an action "on terms that the court considers proper." Id. Absent a contrary indication, a dismissal under Rule 41(a) (2) is without prejudice. Id. Respondent has not filed a response opposing Petitioner's motion. See docket. Consequently, the Court deems the motion unopposed. Local R. 3.01(b), M.D. Fla. Further, the Court independently discerns no identifiable prejudice to Respondent as a result of granting a voluntary dismissal of this action.
Accordingly, it is now ORDERED:
1. Petitioner's Notice of Voluntary Dismissal (Doc. 19) construed as a Motion pursuant to Fed. R. Civ. P. 41(a) (2) is GRANTED and the Petition (Doc. 1) is DISMISSED without prejudice.
This dismissal without prejudice does not excuse Petitioner from the one-year period of limitation for raising a habeas corpus petition in the federal courts. See 28 U.S.C. § 2244(d). The one-year period normally runs from date upon which the conviction became final, see § 2244(d)(1), but the time during which a "properly filed" application for state post-conviction or other collateral review is pending is not counted. See 28 U.S.C. § 2244(d)(2); Artuz v. Bennett, 531 U.S. 4 (2000). The time in which a federal habeas petition is pending, however, does not toll the one-year limitation period. See Duncan v. Walker, 533 U.S. 167, 181 (2001) (construing 28 U.S.C. § 2244(d) (2)). Therefore, the fact that the instant petition is dismissed without prejudice does not preclude a determination that a subsequently filed § 2254 petition is untimely or otherwise procedurally barred. --------
2. The Clerk of the Court shall enter judgment accordingly, terminate any pending motions and close this case.
DONE and ORDERED in Fort Myers, Florida this 30th day of January, 2018.
/s/ _________
SHERI POLSTER CHAPPELL
UNITED STATES DISTRICT JUDGE SA: FTMP-1 Copies:
Petitioner
All Parties of Record