Opinion
Civil Action No. 12-cv-00761-BNB
04-16-2012
JAMES MILLER, Applicant, v. ANGEL MEDINA, and JOHN SUTHERS, Attorney General of the State of Colorado, Respondents.
ORDER DISMISSING CASE
Applicant, James Miller, is a prisoner in the custody of the Colorado Department of Corrections at the Limon Correctional Facility in Limon, Colorado. Mr. Miller initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). On March 30, 2012, Magistrate Judge Boyd N. Boland entered an order directing Mr. Miller to file an amended application that clarifies the claims he is asserting in this action. On April 9, 2012, Mr. Miller filed a Motion to Withdraw Habeas Corpus Application and Dismiss Without Prejudice (ECF No. 7) asking that the instant action be dismissed because the application is not properly prepared and he has not stated a valid constitutional claim for relief.
Pursuant to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure, Mr. Miller "may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." No response has been filed by Respondent in this action. Therefore, the Court will construe Mr. Miller's April 9 motion as a notice of voluntary dismissal. A voluntary dismissal pursuant to Rule 41(a)(1)(A) 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 Applicant's Motion to Withdraw Habeas Corpus Application and Dismiss Without Prejudice (ECF No. 7) filed on April 9, 2012, is construed as a notice of voluntary dismissal. It is
FURTHER ORDERED that the instant action is dismissed without prejudice pursuant to Applicant's notice of voluntary dismissal. It is
FURTHER ORDERED that the voluntary dismissal is effective as of April 9, 2012, the date the notice of voluntary dismissal was filed in this action. It is
FURTHER ORDERED that no certificate of appealability will issue because Applicant has not made a substantial showing of the denial of a constitutional right.
DATED at Denver, Colorado, this 16th day of April, 2012.
BY THE COURT:
______________________
LEWIS T. BABCOCK, Senior Judge
United States District Court