Robertson v. USA

Filing 11

ORDER dismissing this action without prejudice, as of 7/30/14, by Judge Lewis T. Babcock on 8/4/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01938-BNB
JAMES P. ROBERTSON, JR.,
Applicant,
v.
UNITED STATES OF AMERICA,
Respondent.

ORDER DISMISSING CASE

Applicant, James P. Robertson, is a prisoner in the custody of the Federal
Bureau of Prisons who currently is incarcerated at the United States Penitentiary, High
Security, in Florence, Colorado. On July 3, 2014, Mr. Robertson filed pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1),
characterized as a Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28
U.S.C. § 2255. On July 14, 2014, an amended Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 3), also characterized as a Motion to Vacate,
Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255, was filed.
Neither motion to vacate was on the Court-approved form and each failed to
name as Respondent Mr. Robertson’s current warden, superintendent, jailer or other
custodian, the only proper Respondent in a habeas corpus action. On July 14, 2014,
Magistrate Judge Boyd N. Boland entered an order (ECF No. 4) directing Applicant to
cure deficiencies and show cause within thirty days why the § 2241 application should

not be denied and the action dismissed because he has an adequate and effective
remedy pursuant to § 2255 in the United States District Court for the Middle District of
Florida, the sentencing court. On July 28, 2014, Magistrate Judge Craig B. Shaffer
entered an order (ECF No. 7) directing Applicant to file within thirty days a second
amended Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 on the
Court-approved form that sued the proper Respondent and only he signed. On July 30,
2014, rather than curing the designated deficiencies, showing cause as directed, and
filing a second amended § 2241 application, Applicant filed a notice of voluntary
dismissal (ECF No. 10) pursuant to Rule 41(a) of the Federal Rules of Civil Procedure.
The Court must construe liberally Mr. Peterson’s notice of voluntary dismissal
because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the
Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Pursuant to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure, Mr.
Robertson “may dismiss an action without a court order by filing: (i) a notice of dismissal
before the opposing party serves either an answer or a motion for summary judgment.”
No response has been filed by the Respondent in this action. Pursuant to Fed. R. Civ.
P. 41(a)(1)(B), the dismissal is without prejudice, unless otherwise stated. A voluntary
dismissal pursuant to Rule 41(a)(1)(A) is effective immediately upon the filing of a
written notice of dismissal, and no subsequent court order is necessary. See J. Moore,
Moore’s Federal Practice ¶ 41.02(2) (2d ed. 1995); Hyde Constr. Co. v. Koehring Co.,
388 F.2d 501, 507 (10th Cir. 1968). The notice closes the file. See Hyde Constr. Co.,
388 F.2d at 507.
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Accordingly, it is
ORDERED that the instant action is dismissed without prejudice pursuant to the
notice of voluntary dismissal (ECF No. 10) that Applicant, James P. Robertson, Jr., filed
pro se on July 30, 2014. It is
FURTHER ORDERED that the voluntary dismissal is effective as of July 30, the
date the notice of voluntary dismissal was filed in this action. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 4th day of

August

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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