Villa v. People of the State of Colorado, The

Filing 22

ORDER granting 21 Motion to Dismiss Without Prejudice by Judge Lewis T. Babcock on 5/13/15.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03502-GPG
REYNALDO Y. VILLA,
Applicant,
v.
THE PEOPLE OF THE STATE OF COLORADO, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DISMISSING CASE

Applicant, Reynaldo Y. Villa, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Villa initiated this action by filing pro se a motion (ECF
No. 1) challenging the validity of a Colorado state court criminal conviction. On March
6, 2015, Mr. Villa filed on the proper form an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 8). On March 10, 2015, Magistrate Judge
Gordon P. Gallagher entered an order directing Mr. Villa to file an amended application
that clarifies the federal constitutional claims he is asserting. Mr. Villa was warned that
the action would be dismissed if he failed to file an amended application within the time
allowed. On April 6, 2015, Magistrate Judge Gallagher entered a minute order granting
Mr. Villa an extension of time until May 11, 2015, to file an amended application.
Mr. Villa has not filed an amended application as directed. Instead, on May 11,
2015, he filed a Motion to Dismiss Without Prejudice (ECF No. 21) alleging he needs
more time to exhaust state remedies and present the right claims to the Court.

Alternatively, Mr. Villa requests an extension of time until November 30, 2015, to file an
amended application. The Court will not grant the requested extension of time.
Instead, the Court construes the motion as a notice of voluntary dismissal.
Pursuant to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure, Mr. Villa
“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 any opposing party in this action. 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.
Accordingly, it is
ORDERED that the Motion to Dismiss Without Prejudice (ECF No. 21) is
granted. It is
FURTHER ORDERED that the motion (ECF No. 1) and the habeas corpus
application (ECF No. 8) are denied and the instant action is dismissed without prejudice
pursuant to the Motion to Dismiss Without Prejudice (ECF No. 21) that the Court
construes as a notice of voluntary dismissal.
DATED at Denver, Colorado, this

13th

day of

May

, 2015.

BY THE COURT:

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