United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER GRANTING THE PETITIONER'S
MOTION TO VOLUNTARILY DISMISS THE PETITION FOR WRIT OF HABEAS
L. LUDINGTON UNITED STATES DISTRICT JUDGE
Hammock, (“Petitioner”), presently incarcerated
at the Alger Maximum Correctional Facility in Munising,
Michigan, filed a pleading with this Court on April 22, 2019,
in which he appeared to challenge his state criminal
conviction. The Clerk of the Court construed the pleading as
a petition for writ of habeas corpus filed pursuant to 28
U.S.C.§ 2254. Magistrate Judge R. Steven Whalen signed
an Order of Deficiency on April 25, 2019, directing Mr.
Hammock to either submit the $5.00 filing fee for habeas
petitions or an application to proceed in forma
pauperis. On April 29, 2019, Petitioner filed a
complaint alleging he is being illegally detained.
has now filed a letter with the Court which is construed as a
motion to withdraw his petition for writ of habeas corpus
without prejudice. ECF No. 5. For the reasons stated below,
Petitioner may voluntarily withdraw his habeas petition and
his petition for writ of habeas corpus will be dismissed
to Rule 41, after an answer or motion for summary judgment
has been filed, a plaintiff may voluntarily dismiss a suit
“upon order of the court and upon such terms and
conditions as the court deems proper.” Fed.R.Civ.P.
41(a)(2). “[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 & Co., 33 F.3d 716, 718
(6th Cir.1994). Rule 41(a) applies to habeas corpus
proceedings. See Williams v. Clarke, 82 F.3d 270,
272-73 (8th Cir.1996); 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.”).
determining whether a habeas petitioner is entitled to
voluntarily dismiss of their 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 avoid unintentionally exhausting his right to
petition for habeas relief on other grounds).
indicates in his motion to withdraw that the Clerk of the
Court erred in recharacterizing his original pleadings as a
petition for writ of habeas corpus. Mr. Hammock confusingly
argues that he only filed these pleadings to notify this
Court that he is being illegally detained and that the state
courts have improperly handled a pending state
post-conviction motion for relief from judgment.
Clerk of the Court did not err in construing the pleading as
a habeas petition. Where a state prisoner is challenging the
very fact or duration of his physical imprisonment and the
relief that he seeks is a determination that he is entitled
to immediate release or a speedier release from that
imprisonment, his sole federal remedy is a petition for writ
of habeas corpus. Preiser v. Rodriguez, 411 U.S.
475, 500 (1973). Petitioner appears to be challenging his
incarceration. Accordingly, the Clerk of the Court did not
err in filing this pleading as a petition for writ of habeas
is correct, however, that before a district court
re-characterizes a pleading as a petition brought under 28
U.S.C. § 2254, it must give notice to the petitioner of
its intention to convert the petition into one brought under
§ 2254 and give the petitioner the option of withdrawing
the petition. See Martin v. Overton, 391 F.3d 710,
713 (6th Cir. 2004)(citing In re Shelton, 295 F.3d
620, 622 (6th Cir. 2002)). The re-characterization of a
pleading as a § 2254 petition without prior notice to
Petitioner may bar him from asserting a habeas challenge to
his state sentence at a later date, due to the limitations on
the filing of second or successive habeas petitions pursuant
to 28 U.S.C.§ 2244(b). Id. Because Petitioner
argues that he did not intend to file a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, the proper
remedy is dismissing the petition without prejudice.
true that a habeas petitioner should not be permitted to
thwart the limitations on the filing of second or successive
habeas petitions by withdrawing his first habeas petition
“as soon as it becomes evident that the district court
is going to dismiss it on the merits.” See Felder
v. McVicar, 113 F.3d 696, 698 (7th Cir. 1997). However,
unlike the habeas petitioner in Felder, Petitioner
filed his motion to withdraw his habeas petition prior to any
decision being rendered by the Court. There is no indication
that Petitioner's motion was filed in bad faith.
Accordingly, Petitioner will be permitted to withdraw his
voluntary dismissal of his habeas action will 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 he 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).
it is ORDERED that Petitioner's motion
to withdraw the petition for writ of habeas corpus, ECF No.
5, is GRANTED.
further ORDERED that the petition for writ
of habeas corpus, ECF No. 1, is D ...