Opinion
5:22-1645-BHH-KDW
01-09-2023
Corey L. Rutledge, Petitioner, v. Warden of Georgetown County Detention Center, Respondent.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, MAGISTRATE JUDGE
Corey L. Rutledge (“Petitioner”) is a state prisoner who filed this pro se Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Petitioner's Motion to Dismiss. ECF No. 40. Respondent did not file a Response to Petitioner's Motion.
Respondent also has a pending Motion to Dismiss. ECF No. 25.
I. Discussion
A. Federal Habeas Issues
Petitioner raises the following ground in his Petition for a Writ of Habeas Corpus, quoted verbatim:
Ground One: Ineffective Assistance of Counsel
Supporting Facts: Counsel's representation fell below an objective standard of reasonableness in that he failed to properly advise me of the charges I faced, failed advise me of potentially exculpatory evidence in Counsel's possession, and failed to advise me of available defenses. Otherwise rather than pleading guilty, I'd have opted to go to trial.ECF No. 1 at 6.
B. Petitioner's Motion to Dismiss
Petitioner states he received a correspondence on December 14, 2022, notifying him that a hearing was scheduled on January 6, 2023, on his pending state level claims. ECF No. 40. Petitioner asks the court to temporarily suspend or dismiss any further proceedings or motions in this case so he can seek a remedy in state court. Id. To the extent Petitioner is asking the court to stay his pending habeas Petition, the undersigned recommends the court deny this request. District courts on habeas review generally only stay habeas petitions containing both exhausted and unexhausted claims due to the potential impact on a petitioner's ability to file a future habeas application. See Rhines v. Weber, 544 U.S. 269, 276 (2005). Because Petitioner's habeas Petition only contains unexhausted claims, a stay in this case is not appropriate.
Respondent has a pending Motion to Dismiss, therefore, Petitioner's right to dismiss is not absolute, but requires the Petitioner to proceed pursuant to Rule 41(a)(2). Fed.R.Civ.P. Rule 41(a)(2) of the Federal Rules of Civil Procedure provides that, “[e]xcept as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” The Fourth Circuit has identified the following factors to be considered when evaluating a Rule 41(a)(2) motion: (1) the opposing party's effort and expense in preparing for trial; (2) excessive delay or lack of diligence on the part of the movant; (3) insufficient explanation of the need for a dismissal; and (4) the present stage of the litigation, i.e., whether a motion for summary judgment is pending. Gross v. Spies, 133 F.3d 914, *5 (4th Cir. 1998). However, these factors “are not exclusive, . . . and any other relevant factors should be considered by the district court depending on the circumstances of the case.” Gross, 133 F.3d 914 at *6. “A plaintiff's motion under Rule 41(a)(2) should not be denied absent substantial prejudice to the defendant.” Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir. 1986).
The undersigned has reviewed the above-referenced factors and finds Respondent will not suffer substantial prejudice as a result of a dismissal. First, Petitioner has not engaged in excessive delay or lacked diligence in this matter. The state court's failure to rule on his pending PCR application was not in Petitioner's control. Petitioner has also provided a sufficient explanation for why he is now requesting his Petition be dismissed. It appears the state court has now acted on his pending PCR application after a lengthy period of inaction. Finally, Respondent has not taken any action opposing Petitioner's Motion to Dismiss, and many of Respondent's filings in this case could be used in a subsequent action. Accordingly, the undersigned recommends Petitioner's Motion to voluntarily dismiss be granted. Andes, 788 F.2d at 1037 (“[T]he mere filing of an answer or a motion for summary judgment could not, without more, be a basis for refusing to dismiss without prejudice); Dean v. WLR Foods, Inc., 204 F.R.D. 75, 79 (W.D. Va. 2001) (noting in decision to dismiss without prejudice that “much of the pretrial and discovery activities conducted [would] be useable in subsequent litigation”).
II. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Petitioner's Motion to Dismiss his habeas Petition, ECF No. 40, be GRANTED, and Petitioner's habeas Petition be dismissed without prejudice. If the court accepts this recommendation, Respondent's Motion to Dismiss, ECF No. 25, and Petitioner's Motion to Amend/Correct his Petition, ECF No. 30, will be moot.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation.28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).