Hickerson v. Hurley

Filing 7

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Petitioner Eric Brian Hickerson's motion to dismiss without prejudice is GRANTED. (Doc. No. 6.) This case is DISMISSED without prejudice. Signed by District Judge Audrey G. Fleissig on 4/30/2013. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ERIC BRIAN HICKERSON,
Petitioner,
v.
JAMES HURLEY,
Respondent.

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No. 4:13CV00082 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Eric Brian Hickerson’s motion to
dismiss without prejudice. (Doc. No. 6.) Respondent James Hurley did not file a
response to this motion.
Petitioner’s basis for this motion is that he “erred in filing his federal habeas
petition at this time.” (Doc. No. 6 at 1.) Petitioner states that he currently has pending a
motion to vacate, set aside, or correct in the Circuit Court of St. Charles County in which
he raises numerous trial court errors as well as constitutional and statutory issues. (Doc.
No. 1 at 3.) After reviewing the State’s response to his petition (Doc. No. 4), Petitioner
realized that issues raised in his pending state proceeding might be foreclosed from
federal habeas review if he were now to pursue just the one ground for relief raised in this
action.1

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The only ground for relief presented in this action is whether the prosecution
presented improper comments and testimony regarding Petitioner’s silence. Petitioner
states that he raised this issue “in error” in his pending state proceeding – it was “fully
litigated on direct appeal and will not be considered under 29.15.” (Doc. No. 1 at 6.)

Respondent has filed an answer to the petition (Doc. No. 4), so this action “may be
dismissed at the plaintiff’s request only by court order, on terms that the court considers
proper.” Fed. R. Civ. P. 41(a)(2). The decision whether to permit dismissal in these
circumstances lies within the sound discretion of the district court. Hamm v. RhonePoulenc Rorer Pharm., Inc., 187 F.3d 941, 950 (8th Cir. 1999). In exercising that
discretion, the Eighth Circuit has instructed district courts to consider the following
factors:
whether the party has presented a proper explanation for its desire to
dismiss; whether a dismissal would result in a waste of judicial time and
effort; and whether a dismissal will prejudice the defendants. Likewise, a
party is not permitted to dismiss merely to escape an adverse decision nor
to seek a more favorable forum.
Donner v. Alcoa, Inc., 709 F.3d 694, 697 (8th Cir. 2013). After considering these
factors, the Court finds Petitioner has presented a proper explanation and is not trying to
escape an adverse decision or seek a more favorable forum. Moreover, dismissal will not
prejudice Respondent nor result in a waste of judicial time and effort.
Accordingly,
IT IS HEREBY ORDERED that Petitioner Eric Brian Hickerson’s motion to
dismiss without prejudice is GRANTED. (Doc. No. 6.) This case is DISMISSED
without prejudice.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 30th day of April, 2013.
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