Opinion
NO. 98-0773
August 21, 2000
ORDER
Petitioner Barbette Williams filed a motion to dismiss his petition for habeas corpus without prejudice so that he can pursue in state court an unexhausted claim based on alleged newly discovered Brady material. By voluntarily dismissing this suit prior to any substantive ruling, he hopes to later bring all claims before this court without being subject to restraints against successive petitions. See e.g., Haro-Arteaga v. United States, 199 F.3d 1195 (10th Cir. 1999)
This court has authority to grant voluntary dismissal pursuant to Federal Rule of Civil procedure 41(a)(2) in habeas cases brought pursuant to 42 U.S.C. § 2254. Kramer v. Butler, 845 F.2d 1291 (5th Cir), cert. denied, 488 U.s. 865, 109 S.Ct. 168, 102 L.Ed.2d 138 (1988). "[I]n most cases a voluntary dismissal should be allowed unless the defendant will suffer some plain prejudice other than the mere prospect of a second lawsuit." Fisher v. Puerto Rico Marine Management. Inc., 940 F.2d 1502, 1502-03 (11th Cir. 1991). The only action taken by the defendant in this case was to file a response to the petition. This is not a case where the defendant has spent considerable time and expense on trial preparation. In addition, the district court has not engaged in any substantive review.
If there is any prejudice in the voluntary dismissal of this case, it may be against the petitioner who may be procedurally barred by state and/or federal limitation periods for filing post-conviction or habeas corpus proceedings. See La.C.Crim.P. Art. 930.8; 28 U.S.C. § 2244 (d) (1). This is a possibility even though the dismissal herein would be without prejudice and a subsequent petition may not be subject to the successive petition rules of the Antiterrorism and Effective Death Penalty Act.
Accordingly,
IT IS ORDERED that petitioner's Motion to Dismiss without prejudice is GRANTED with the right to file a motion to reconsider within twenty days from entry of this order if he decides he does not wish to voluntarily dismiss this suit.