Willey v. DIRECTOR, TDCJ-ID, No. 6:2009cv00454 - Document 9 (E.D. Tex. 2009)
Court Description: ORDER ADOPTING REPORT AND RECOMMENDATIONS of the UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT for 7 Report and Recommendations. ORDERED that the Petitioners motion for voluntary dismissal of his petition is GRANTED and the Report of the Magistrate Judge is ADOPTED as the opinion of the District Court. ORDERED that any and all motions which may be pending in this action are hereby DENIED. Signed by Judge Michael H. Schneider on 12/7/2009. (gsg)
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Willey v. DIRECTOR, TDCJ-ID Doc. 9 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION WILLIS FLOYD WILEY § v. § DIRECTOR, TDCJ-CID § CIVIL ACTION NO. 6:09cv454 MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT The Petitioner Willis Wiley, proceeding pro se, filed this application for the writ of habeas corpus complaining of the legality of his conviction. This Court ordered that the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges. Wiley has filed a motion asking that his petition be dismissed. On October 28, 2009, the Magistrate Judge issued a Report recommending that the petition be dismissed without prejudice. Wiley has filed a response to the Report, noting that the Magistrate Judge also discussed whether or not his petition is successive and whether or not he has exhausted state remedies. He asks that the petition be dismissed on his motion for voluntary dismissal. The Court has conducted a careful de novo review of the Magistrate Judge’s Report and Wiley’s response thereto. While the Magistrate Judge’s discussion of exhaustion and the possible successive nature of Wiley’s petition is accurate, the Fifth Circuit has held that plaintiffs have an absolute right to a voluntary dismissal. Harvey Specialty and Supply Inc. v. Anson Flowline Equipment Inc., 434 F.3d 320, 324 (5th Cir. 2005). Wiley’s motion to dismiss his petition is meritorious, and it is accordingly 1 Dockets.Justia.com . ORDERED that the Petitioner’s motion for voluntary dismissal of his petition is GRANTED and the Report of the Magistrate Judge is ADOPTED as the opinion of the District Court insofar as it recommends that the petition be dismissed without prejudice. Finally, it is ORDERED that any and all motions which may be pending in this action are hereby DENIED. SIGNED this 7th day of December, 2009. ____________________________________ MICHAEL H. SCHNEIDER UNITED STATES DISTRICT JUDGE 2
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