Lewis v. Bell

Filing 43

Order Granting Petitioner's Motion to Dismiss the 28 U.S.C. 2254 Habeas Corpus Action Without Prejudice, Dismissing the Matter Without Prejudice, and Denying as Moot Petitioner's Motion for Leace to Amend or Supplement Record, Petitioner&# 039;s Motion/Petition for Leave to File an Appeal, Petitioner's Application to Proceed In Forma Pauperis on Appeal, and Petitioner's Motion to Stay Proceedings Pending Review of Order on Appeal. Signed by District Judge Thomas L Ludington. (JCre)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION MAN LEWIS, JR., Petitioner, v. THOMAS K. BELL, Respondent. ___________________________________/ ORDER GRANTING PETITIONER'S MOTION TO DISMISS THE 28 U.S.C. 2254 HABEAS CORPUS ACTION WITHOUT PREJUDICE, DISMISSING THE MATTER WITHOUT PREJUDICE, AND DENYING AS MOOT PETITIONER'S MOTION FOR LEAVE TO AMEND OR SUPPLEMENT RECORD, PETITIONER'S MOTION/PETITION FOR LEAVE TO FILE AN APPEAL, PETITIONER'S APPLICATION TO PROCEED IN FORMA PAUPERIS ON APPEAL, AND PETITIONER'S MOTION TO STAY PROCEEDINGS PENDING REVIEW OF ORDER ON APPEAL Petitioner Man Lewis, a Michigan state prisoner currently confined at Boyer Road Correctional Facility in Carson City, Michigan, filed a pro se habeas corpus petition under 28 U.S.C. 2254 on April 12, 2007. Petitioner raised eight issues for habeas review challenging the calculation of his maximum prison discharge date by the Michigan Department of Corrections and the State Parole Board. Petitioner's current maximum discharge date is August 1, 2009. On March 18, 2008, Petitioner filed a motion for "partial voluntary dismissal," [Dkt. # 27] requesting the "dismissal" of certain pleadings. On March 19, 2008, the Court denied Petitioner's motion, along with several other motions, stating that Federal Rule of Civil Procedure 41(a)(2) only allows the dismissal of whole actions, not individual pleadings. Petitioner attempted to appeal the Court's order, however, the Sixth Circuit Court of Appeals dismissed the appeal, on the grounds that Case Number 07-11643-BC Honorable Thomas L. Ludington this Court had not entered a final or appealable order. The Court of Appeals instructed Petitioner that he should file a motion in this Court to dismiss the action under Federal Rule of Civil Procedure 41(a)(2) if that is indeed what he seeks to do. Now before the Court is Petitioner's motion to voluntarily dismiss the action pursuant to Federal Rule of Civil Procedure 41(a)(2), [Dkt. # 42] filed on November 12, 2008. Based on the foregoing, and the fact that Respondent will not be prejudiced by Petitioner's voluntary dismissal of the action, the Court will grant Petitioner's motion. Accordingly, it is ORDERED that Petitioner's motion to voluntarily dismiss the 28 U.S.C. 2254 action without prejudice [Dkt # 42] is GRANTED. It is further ORDERED that the petition for writ of habeas corpus [Dkt. #1] is DISMISSED WITHOUT PREJUDICE. It is further ORDERED that Petitioner's motion for leave to amend or supplement record [Dkt. # 32], Petitioner's motion/petition for leave to file an appeal [Dkt. # 35], Petitioner's application to proceed in forma pauperis on appeal [Dkt. # 37], and Petitioner's motion to stay proceeding pending review of order on appeal [Dkt. # 38] are DENIED AS MOOT. s/Thomas L. Ludington THOMAS L. LUDINGTON United States District Judge Dated: November 14, 2008 PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on November 14, 2008. s/Tracy A. Jacobs TRACY A. JACOBS 2

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