KERSEY v. STATE OF FLORIDA

Filing 6

REPORT AND RECOMMENDATION. That Petitioner's Notice of Voluntary Dismissal 5 be GRANTED and this action dismissed without prejudice. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on 6/11/09.R&R flag set Internal deadline for referral to district judge if objections are not filed earlier: 7/9/2009 (lcu)

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Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION HORACE HAMID KERSEY, Petitioner, vs. STATE OF FLORIDA, Respondent. _______________________________________/ REPORT AND RECOMMENDATION This matter is before the court on Petitioner's Notice of Voluntary Dismissal of his habeas petition, filed pursuant to 28 U.S.C. 2254, without prejudice (Doc. 5). Rule 41(a)(1)(A)(I) provides that an action may be dismissed without an order of the court by filing a notice of dismissal at any time before the adverse party serves an answer, or files a motion for summary judgment. Because Respondent has not yet served an answer in the instant case, it is clear that Petitioner is automatically entitled to a voluntary dismissal at this time. However, Petitioner should be aware of 28 U.S.C. 2244(d), which establishes a one-year period of limitation for applications for writs of habeas corpus challenging state court judgments. The oneyear period normally runs from date upon which the conviction became final, see 2244(d)(1), but the time during which a "properly filed" application for state post-conviction or other collateral review is pending is not counted. See 2244(d)(2); Artuz v. Bennett, 531 U.S. 4, 121 S. Ct. 361, 148 L. Ed. 2d 213 (2000). Furthermore, Petitioner is advised that the pendency of the instant federal habeas action does not toll the one-year limitations period set forth in 28 U.S.C. 2244(d)(1). See Duncan v. Walker, 533 U.S. 167, 181, 121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001) (construing 28 U.S.C. 2244(d)(2)). Additionally, the fact that the petition is dismissed without prejudice does not preclude a determination that a subsequently filed 2254 petition is untimely or otherwise procedurally barred. Case No. 3:09cv202/MCR/EMT Page 2 of 2 Accordingly, it is respectfully RECOMMENDED: That Petitioner's Notice of Voluntary Dismissal (Doc. 5) be GRANTED and this action dismissed without prejudice. At Pensacola, Florida, this 11th day of June 2009. /s/ Elizabeth M. Timothy ELIZABETH M. TIMOTHY UNITED STATES MAGISTRATE JUDGE NOTICE TO THE PARTIES Objections to these proposed findings and recommendations may be filed within ten (10) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only. A copy of objections shall be served upon the magistrate judge and all other parties. Failure to object may limit the scope of appellate review of factual findings. See 28 U.S.C. 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988). Case No.: 3:09cv202/MCR/EMT

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