Opinion
No. 3:02-CV-0668-G
November 4, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
On April 1, 2002, petitioner, an inmate in the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID), filed the instant petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent is Janie Cockrell, Director of TDCJ-ID.
On October 22, 2002, petitioner filed a "Motion to Dismiss" wherein he asks the Court to dismiss his petition without prejudice so that he may exhaust state remedies. ( See Pet.'s Mot. Dismiss at 2.) The Court reasonably construes this motion as a notice of dismissal filed under Fed.R.Civ.P. 41(a). That Rule provides that "an action may be dismissed by the [the party seeking relief] by filing a notice of dismissal at any time before service by the adverse party of an answer or motion for summary judgment, whichever first occurs." Respondent has not yet filed an answer or a summary judgment motion. Therefore, voluntary dismissal under Rule 41(a) is proper.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the Court construe the motion to dismiss filed by petitioner on October 22, 2002, as a notice of dismissal filed under Fed.R.Civ.P.41(a) and DISMISS the instant habeas corpus petition without prejudice.