Opinion
4:21-CV-00068-CDL-MSH
06-03-2021
ANDY NOWELL, Petitioner, v. Warden JOHN CROW, III, Respondents.
RECOMMENDATION OF DISMISSAL
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Presently pending before the Court is a petition seeking habeas corpus relief under 28 U.S.C. § 2254 filed by pro se Petitioner Andy Nowell, a prisoner currently confined in the Easterling Correctional Facility in Clio, Alabama (ECF No. 1). On May 11, 2021, Petitioner filed a motion to dismiss this Petition without prejudice (ECF No. 6). In his motion, Petitioner explains that he “filed this cause pro-se with inmate assistance, ” but that “[i]t appears from the Court's actions that Petitioner's claim has not been properly filed.” Mot. Dismiss 1, ECF No. 4. Petitioner is apparently referring to the fact that the Court returned his motion for leave to proceed in forma pauperis because the motion was not signed and the account certification form had not been completed. See Notice of Deficiency, Apr. 27, 2021. Petitioner has also requested copies of the documents filed with the Court to date, contending he intends to refile this action but has no copy of the documents filed on his behalf. See Mot. Dismiss 1, ECF No. 4.
Petitioner is entitled to dismiss this action pursuant to Federal Rule of Civil Procedure 41(a). It is therefore RECOMMENDED that Petitioner's motion to dismiss (ECF No. 4) be GRANTED and that his pending motion to proceed in forma pauperis (ECF No. 3) be DENIED as moot. If Petitioner does not intend to dismiss this action, he should object in accordance with the instructions below. The Court has already returned to Petitioner his incomplete motion to proceed in forma pauperis, including the account certification form. The Clerk is DIRECTED, however, to mail Petitioner a copy of the Petition filed at ECF No. 1.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations with the Honorable Clay D. Land, United States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. The parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
SO RECOMMENDED.