Opinion
No. 3:03-CV-2629-D.
July 28, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE REGARDING MOTION TO DISMISS
By Order of Reference filed May 5, 2004, the District Court referred "Applicant's Pro Se Motion to Dismiss Without Prejudice Under A.E.D.P.A. to Re-filing of Same; Alternatively Request the Court Permission to Re-plead Entire 28 U.S.C. § 2254 Application at This Time by Filing Amended Application" to the undersigned Magistrate Judge for recommendation.
Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1217.
I. BACKGROUND
On March 16, 1982, a jury found petitioner guilty of attempted capital murder in Cause No. F81-12123-MKQ, and he was sentenced to life imprisonment. (Pet. Writ of Habeas Corpus (Pet.) at 2.) His conviction was affirmed on appeal in 1983. ( Id. at 3.) On February 8, 2003, petitioner filed a state writ raising claims related to a denial of release on mandatory supervision. ( Id. ¶ 11.) The Texas Court of Criminal Appeals denied that writ on May 28, 2003. ( Id.) In October 2003, petitioner filed the instant federal petition for writ of habeas corpus and a supporting memorandum to challenge the denial of release on mandatory supervision. ( See id. at 1, 9; Mem. Supp.)
On April 20, 2004, the undersigned Magistrate Judge recommended that the District Court summarily dismiss petitioner's federal petition because he asserted no constitutional violation. ( See Findings, Conclusions, and Recommendation at 3.) The Court informed petitioner that he had ten days to lodge an objection to the findings and recommendation. ( Id. at 4.) On May 4, 2004, the Court received the instant motion.
II. MOTION TO DISMISS
Petitioner asks the Court to dismiss this action without prejudice to later refiling the action notwithstanding AEDPA. He concedes that he "inartfully pled his Original § 2254 Application without adequate display of the particular Grounds for Relief that [he] presented to Texas courts and in so doing has `failed to state a Legal Claim' cognizant to the Court here."
The Court could reasonably construe the motion to dismiss as a notice of dismissal filed under Fed.R.Civ.P. 41(a). That rule provides that "an action may be dismissed by the [the party seeking relief] . . . by filing a notice of dismissal at any time before service by the adverse party of an answer or motion for summary judgment, whichever first occurs." Respondent has not yet filed an answer or a summary judgment motion. Therefore, voluntary dismissal under Rule 41(a) appears facially proper.
However, in this case petitioner specifically requests that the Court dismiss this action "WITHOUT PREJUDICE UNDER THE A.E.D.P.A. (ONE YEAR LIMITATION)." He seeks to impose limitations on the dismissal which are not contemplated by Fed.R.Civ.P. 41(a). Although the Court may properly dismiss the action without prejudice under Rule 41(a), such dismissal would not make the procedural barriers presented by AEDPA inapplicable to a later-filed action. To the contrary, the Court has no authority to make the various procedural barriers of AEDPA inapplicable, and any re-filing would be subject to AEDPA's statute of limitations, exhaustion requirements, and prohibition on successive petitions.
In this instance, because it appears that petitioner only seeks to voluntarily dismiss this action on the condition that he can later re-file an action without regard to the procedural barriers of AEDPA, the Court should decline to construe the motion to dismiss as a notice of dismissal filed pursuant to Fed.R.Civ.P. 41(a). Rule 41(a) does not contemplate dismissals with such accommodations. To the extent that petitioner still seeks to voluntarily dismiss his petition under Rule 41(a) subject to the procedural barriers of AEDPA, he merely needs to file a notice of dismissal in accordance with Rule 41(a) before the Court takes action on the previous findings and recommendation filed in this case. Any later filing will be subject to AEDPA's statute of limitations, exhaustion requirements, and prohibition on successive petitions. Furthermore, petitioner would not be entitled to statutory tolling of the limitations period for the time period that the instant action has been pending. See Duncan v. Walker, 533 U.S.167, 181 (2001) (holding that 28 U.S.C. § 2244(d)(2) "does not toll the limitation period during the pendency of a federal habeas petition").
III. LEAVE TO AMEND
Alternatively, petitioner seeks leave to amend his current petition. Because the current petition asserts no constitutional violation the undersigned Magistrate Judge previously recommended that the District Court summarily dismiss it. Petitioner now concedes that, as submitted, his petition fails to state a cognizable claim. He seeks to amend his petition so as to avoid dismissal of this action. He asserts that he has viable claims to submit to the Court via an amended petition.
Despite his assertions and reasons for seeking to file an amended petition, petitioner has not complied with the local rules of this Court that govern motions to amend. He has not attached a copy of the proposed amendment to his motion as required by L.R. 15.1. He has also not submitted an original and a second copy of the proposed amendment as required by L.R. 15.1. Furthermore, although he states that he has "viable Claims of action that may result in change; modification or reversal of existing law", he does not identify any such claims. Without a copy of the proposed amended petition, the Court is in no position to consider whether the proposed amendment indeed states a viable claim. All parties, even those who proceed without counsel, must abide by the local rules of this Court. Because petitioner has not complied with the local rules of this Court, and has provided no information from which the Court can determine the validity of any proposed amendment, the Court should deny the request to amend.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the Court DENY petitioner's motion to dismiss petition or alternatively to amend petition (doc. 8).