Deering Bey v. Hemingway
Filing
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OPINION AND ORDER granting 6 Motion to VOLUNTARILY DISMISS THE PETITION FOR A WRIT OF HABEAS CORPUS. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEROME DEERING BEY,
Petitioner,
Case No. 2:20-CV-12029
HONORABLE PAUL D. BORMAN
v.
J. HEMINGWAY,
Respondent.
___________________________/
OPINION AND ORDER GRANTING PETITIONER’S MOTION TO
VOLUNTARILY DISMISS THE PETITION FOR A WRIT OF HABEAS
CORPUS
Jerome Deering-Bey, (“Petitioner”), presently incarcerated at the Federal
Correctional Institution in Milan, Michigan, filed a petition for a writ of habeas
corpus filed pursuant to 28 U.S.C.§ 2241.
Petitioner has now filed a motion to voluntarily dismiss his petition for a writ
of habeas corpus. For the reasons stated below, the Court will allow petitioner to
voluntarily withdraw his habeas petition and will dismiss the petition for a writ of
habeas corpus without prejudice.
“[A] voluntary dismissal without prejudice leaves the situation as if the action
had never been filed.” Sherer v. Construcciones Aeronauticas, S.A., 987 F.2d 1246,
1247 (6th Cir.1993). A decision to grant or deny a voluntary dismissal to a plaintiff
is committed to the sound discretion of the district court. See Grover v. Eli Lilly &
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Co., 33 F.3d 716, 718 (6th Cir.1994). “Generally, an abuse of discretion is found
only where the defendant would suffer ‘plain legal prejudice’ as a result of a
dismissal without prejudice, as opposed to facing the mere prospect of a second
lawsuit.” Id. (citing Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217
(1947); Kovalic v. DEC Int’l, Inc., 855 F.2d 471, 473 (7th Cir.1988)). Rule 41(a)
applies to habeas corpus proceedings. See Williams v. Clarke, 82 F.3d 270, 272–73
(8th Cir.1996); Doster v. Jones, 60 F.Supp.2d 1258, 1259 (M.D.Ala.1999)(citing
cases). See also Rule 11, Rules Governing Section 2254 Cases in the United States
District Courts, 28 U.S.C. foll. § 2254 (“The Federal Rules of Civil Procedure, to
the extent that they are not inconsistent with these rules, may be applied, when
appropriate, to petitions filed under these rules.”).
In determining whether or not a habeas petitioner is entitled to voluntarily
dismiss his habeas petition without prejudice, federal courts must “ensure that the
petitioner’s ability to present claims of constitutional violations is not abridged
merely because the petitioner has unwittingly fallen into a procedural trap created
by the intricacies of habeas corpus law.” See Clark v. Tansy, 13 F.3d 1407, 1409
(10th Cir. 1993); see also Cook v. New York State Div. Of Parole, 321 F.3d 274, 282
(2d Cir. 2003)(after state prisoner’s § 2241 petition was converted by the court into
a § 2254 petition, prisoner would be allowed opportunity to withdraw his petition to
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avoid unintentionally exhausting his right to petition for habeas relief on other
grounds).
In this case, petitioner’s voluntary dismissal of his habeas action would
completely terminate the litigation in this case. See Long v. Board of Pardons and
Paroles of Texas, 725 F.2d 306, 306 (5th Cir. 1984). Because petitioner is seeking
to withdraw his habeas petition pursuant to Fed. R. Civ. P. 41(a)(2), the dismissal
will be without prejudice. See Markham v. Anderson, 465 F. Supp. 541, 543 (E.D.
Mich. 1980).
ORDER
Accordingly, the motion to dismiss the petition for a writ of habeas corpus
(ECF No. 6) is GRANTED.
IT IS HEREBY ORDERED that the petition for a writ of habeas corpus (ECF
No. 1) is DISMISSED WITHOUT PREJUDICE.
Dated: September 18, 2020
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT COURT
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