Kelly v. Tecumseh State Corrections Institute

Filing 9

MEMORANDUM AND ORDER-Petitioner may request voluntary dismissal without prejudice of this case pursuant to Rule 41 of the Federal Rules of Civil Procedure. On the Court's own motion, the time in which petitioner has to file an amended petition for writ of habeas corpus is extended. Petitioner has 30 days from the date of this Memorandum and Order to file an amended petition for writ of habeas corpus. Failure to file an amended petition will result in the Court dismissing this case without prejudice and without further notice. In other words, in order for this matter to proceed in this Court, petitioner must file an amended petition for writ of habeas corpus as provided in the Courts Memorandum and Order dated July 6, 2015. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 9/8/2015:check for amended petition; dismiss if none filed) Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
A.J. KELLY,

)
)
Plaintiff,
)
)
v.
)
)
TECUMSEH STATE CORRECTIONS
)
INSTITUTE,
)
)
Defendant.
)
______________________________)

8:15CV78

MEMORANDUM AND ORDER

Petitioner filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 on March 2, 2015.

On July 6, 2015,

the Court ordered petitioner to file an amended petition for writ
of habeas corpus within 30 days.

As of the date of this

Memorandum and Order, petitioner has not filed an amended
petition.
This matter is before the Court on petitioner’s
correspondence filed on July 20, 2015 (Filing No. 8).

Petitioner

asks in his correspondence whether he “may come back at a later
date” to prosecute this case or whether he may “cancel” it at
this time.

The Court cannot act as petitioner’s counsel by

giving him advice on how to proceed in this action.

Petitioner

should note that he may request voluntary dismissal without
prejudice of this case pursuant to Rule 41 of the Federal Rules
of Civil Procedure.

However, there are potential consequences of

dismissal of his action pursuant to such a request.
Specifically, Petitioner should be aware that 28 U.S.C. § 2244(d)
establishes a one-year period of limitation for applications for
writs of habeas corpus challenging state court judgments.1

The

pendency of the instant federal action does not toll -- and has
not tolled -- the one-year limitation period set forth in 28
U.S.C. § 2244(d)(1) should petitioner subsequently file another
§ 2254 petition after dismissal of the instant petition without
prejudice.

See Duncan v. Walker, 533 U.S. 167, 181 (2001).

Finally, petitioner is advised that the fact that a § 2254
petition is dismissed without prejudice does not preclude a
determination that a subsequently filed § 2254 petition is
untimely or otherwise procedurally barred.
IT IS ORDERED:
1.

Petitioner may request voluntary dismissal without

prejudice of this case pursuant to Rule 41 of the Federal Rules
of Civil Procedure.
2.

On the Court’s own motion, the time in which

petitioner has to file an amended petition for writ of habeas

1

The one-year period normally runs from the date upon which
the conviction became final, see 28 U.S.C. § 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 28 U.S.C. § 2244(d)(2).
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corpus is extended.

Petitioner has 30 days from the date of this

Memorandum and Order to file an amended petition for writ of
habeas corpus.

Failure to file an amended petition will result

in the Court dismissing this case without prejudice and without
further notice.

In other words, in order for this matter to

proceed in this Court, petitioner must file an amended petition
for writ of habeas corpus as provided in the Court’s Memorandum
and Order dated July 6, 2015.
3.

The clerk of the court is directed to set the

following pro se case management deadline:

September 8, 2015:

check for amended petition; dismiss if none filed.
DATED this 4th day of August, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* This opinion may contain hyperlinks to other documents or Web sites.
The U.S. District Court for the District of Nebraska does not endorse,
recommend, approve, or guarantee any third parties or the services or products
they provide on their Web sites. Likewise, the Court has no agreements with
any of these third parties or their Web sites. The Court accepts no
responsibility for the availability or functionality of any hyperlink. Thus,
the fact that a hyperlink ceases to work or directs the user to some other site
does not affect the opinion of the Court.

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