Turner v. Archuleta et al

Filing 17

ORDER dismissing this action without prejudice, as of 9/25/15, by Judge Lewis T. Babcock on 9/29/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01580-GPG

DERRICK E. TURNER,
Applicant,
v.
LOU ARCHULETA, Warden,
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DISMISSING CASE

Plaintiff, Derrick E. Turner, is a prisoner in the custody of the Colorado
Department of Corrections, currently incarcerated in Canon City, Colorado. On July 24,
2015, Applicant initiated this action by filing an Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254. (ECF No. 1). He also submitted numerous Motions to
Stay asserting that there are issues pending on appeal in state court that he wanted to
add to his habeas application once the issues are exhausted. (ECF Nos. 3, 6, and 11).
On September 14, 2015, this Court denied all of the Motions to Stay. (ECF No.
15). The Court also informed Plaintiff that because his Motions to Stay were denied, he
had a choice to either voluntarily dismiss this action and wait for the state court to
exhaust his additional claims before seeking relief in federal court -- or -- he could
proceed with the current action but would likely be barred from seeking future review of
the currently unexhausted clams. The Court warned Applicant that if he elected to
voluntarily dismiss this action, the one-year limitation period in § 2244(d) would be

applied to any new federal habeas action he files. Additionally, the time during which a
28 U.S.C. § 2254 application is pending in this Court does not toll the limitation period.
On September 25, 2015, Plaintiff filed a “Motion to Dismiss Without Prejudice.”
(ECF No. 16). Fed. R. Civ. P. 41(a)(1) provides that “the plaintiff 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 . . . .” In this case, no responsive
pleading has been filed by the Respondents. Further, a voluntary dismissal under Rule
41(a)(1) 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). Plaintiff’s Motion to Dismiss, therefore, closes the file as of September 25,
2015. See Hyde Constr. Co., 388 F.2d at 507. Accordingly, it is
ORDERED that the action is dismissed pursuant to Fed. R. Civ. P. 41(a)(1). It is
FURTHER ORDERED that the voluntary dismissal is without prejudice and is
effective as of September 25, 2015, the date Plaintiff filed his Motion to Dismiss (ECF
No. 16) requesting voluntary dismissal of this action.
DATED at Denver, Colorado, this

29th

day of

September

, 2015.

BY THE COURT:

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