Formica v. Superintendent of the Central Virginia Regional Jail

Filing 82

Order to Respond within fourteen (14) days from the entry of this Order's entry, a brief statement stating, without conditions and reasons, whether he wishes to voluntarily dismiss his petition without prejudice or continue to prosecute his petition Responses due by 5/11/2015. Signed by District Judge Michael F. Urbanski on 4/23/2015. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
MICHAEL FORMICA,
Petitioner,
v.
SUPERINTENDENT OF THE
CENTRAL VIRGINIA REGIONAL
JAIL,
Respondent.

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Civil Action No. 7:14-cv-00357
ORDER
By:

Hon. Michael F. Urbanski
United States District Judge

Michael Formica, a Virginia inmate proceeding pro se, filed an amended petition for a
writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to challenge criminal judgments entered by
the Circuit Court of Green County. Presently before the court are, inter alia, Petitioner’s motions
to voluntarily dismiss this action without prejudice after Respondent filed an answer. See Fed. R.
Civ. P. 41(a)(2) (permitting voluntary dismissal only by leave of court if an answer has been
filed); see also Briscoe v. Klaus, 538 F.3d 252, 258-59 (3d Cir. 2008) (recognizing a pro se
litigant is “solely responsible for the progress of his case”). In his motions to voluntarily dismiss,
Formica alleges that allowing this action to continue “will amount to a manifest . . . injustice” and
that he would prefer “a meaningful opportunity to continue [this action] at another time.” Despite
these motions, Formica has nonetheless continued to litigate his petition.
On March 26, 2015, the court ordered Formica to clarify whether he wished to voluntarily
dismiss his petition without prejudice or continue to prosecute his petition. At about the same
time the court issued the order, Formica was transferred to two prisons, and the court cannot
ascertain whether Formica ever received the order to respond.
Accordingly, Formica shall FILE, within fourteen (14) days of this Order’s entry, a brief
statement stating, without conditions or reasons, whether he wishes to voluntarily dismiss his
petition without prejudice or continue to prosecute his petition. See Briscoe, supra. Formica is

advised that the one-year limitations period set forth in 28 U.S.C. § 2244(d)(1) applies to petitions
for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254 and may bar a future petition that
does not qualify either for statutory tolling pursuant to 28 U.S.C. § 2244(d)(2) or equitable tolling
pursuant to Holland v. Florida, 560 U.S. 631 (2010). Formica is further advised that a failure to
comply with this order shall result in the court granting his motions to voluntarily dismiss as the
court will assume that Formica has lost interest in prosecuting his petition.
It is so ORDERED.
The Clerk shall send a copy of this Order to the parties.
Entered: April 23, 2015

/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge

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