Opinion
Case No.: 5:07cv271/MCR/EMT.
February 19, 2008
REPORT AND RECOMMENDATION
This matter is before the court on Petitioner's Motion for Voluntary Dismissal of his habeas petition filed pursuant to 28 U.S.C. § 2241 (Doc. 8). As grounds for dismissal, Petitioner states he should properly bring his claims in a motion to vacate sentence under § 2255, instead of in a habeas petition under § 2241 (id.).
Rule 41(a)(1) provides that an action may be dismissed without an order of the court by filing a notice of dismissal at any time before the adverse party serves an answer, or files a motion for summary judgment. Because Respondent has not yet served an answer in the instant case, it is clear that Petitioner is automatically entitled to a voluntary dismissal at this time. The dismissal should be without prejudice to Petitioner's presenting his claims in a motion to vacate sentence under § 2255. Petitioner should be aware that § 2255 establishes a one-year period of limitation for filing a motion to vacate sentence challenging a federal court judgment. The one-year period normally runs from date upon which the conviction became final. 28 U.S.C. § 2255. Additionally, the fact that the instant petition is dismissed without prejudice does not preclude a determination that a subsequently filed § 2255 petition is untimely or otherwise procedurally barred.
Accordingly, it is respectfully RECOMMENDED:
That Petitioner's Motion for Voluntary Dismissal (Doc. 8) be GRANTED and this action dismissed without prejudice.
At Pensacola, Florida.
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations may be filed within ten (10) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only. A copy of objections shall be served upon the magistrate judge and all other parties. Failure to object may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts , 858 F.2d 698, 701 (11th Cir. 1988).