United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE
has filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254. (Doc. 3). On September 5, 2018,
respondent filed a motion to dismiss the petition on the
ground that the petition is time-barred, pursuant to 28
U.S.C. § 2244(d)(1). (Doc. 7). This matter is now before
the Court on petitioner's motion to dismiss the petition
without prejudice (Doc. 8), which was filed on November 5,
motion is construed as being brought pursuant to Fed.R.Civ.P.
41(a)(2).Because the respondent has already filed a
response, this matter may not be dismissed without prejudice
pursuant to Rule 41(a)(2) except by court order. See
Henderson v. Hall, No. 1:09cv2058, 2010 WL 2572698, at
*2 (N.D. Ohio June 4, 2010) (Report & Recommendation),
adopted, 2010 WL 2572652 (N.D. Ohio June 21, 2010).
Whether the petitioner's request for dismissal without
prejudice should be granted “is within the sound
discretion of the Court.” See Martin v. Warden,
Lebanon Corr. Inst., No. 1:12cv458, 2014 WL 1271020, at
*3 (S.D. Ohio Mar. 27, 2014) (Barrett, J.).
court stated in Henderson, the “intendment of
Rule 41(a)(2) is primarily to prevent voluntary dismissals
which unfairly affect the other side.” Henderson,
supra, 2010 WL 2572698, at *2 (quoting Alamance
Indus., Inc. v. Filene's, 291 F.2d 142, 146 (1st
Cir. 1961)); see also Martin, supra, 2014 WL
1271020, at *3 (“[T]he primary purpose of [Fed. R. Civ.
P. 41(a)(2)] is to protect the non-movant from unfair
treatment.”). Therefore, one of the factors that should
be considered in determining whether dismissal is appropriate
is “prejudice to the non-moving party.”
Martin, supra, 2014 WL 1271020, at *3. In addition,
the court “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.” Id. (quoting Ortega v.
Trombley, No. 2:07cv10456, 2007 WL 781878, at *1 (E.D.
Mich. Mar. 13, 2007), in turn quoting Clark v.
Tansy, 13 F.3d 1407, 1409 (10th Cir. 1993)).
case, respondent has not opposed petitioner's motion
requesting that the petition be dismissed without prejudice,
nor does the record suggest that prejudice to the non-moving
party precludes this Court from granting petitioner's
request. As the courts in Henderson and
Martin similarly found, the prospect of having to
litigate a second lawsuit requiring the filing of another
return of writ in response to a renewed habeas corpus
petition filed by petitioner in the future does not, in and
of itself, constitute “plain legal prejudice”
sufficient to justify the denial of the petitioner's
motion. See Id. at *3; Henderson, supra,
2010 WL 2572698, at *2. Cf. Wakefield v. Children's
Hosp., Inc., No. 2:06cv1034, 2009 WL 588021, at *2 (S.D.
Ohio Mar. 6, 2009) (Sargus, J.) (and cases cited therein)
(“[C]ourts have consistently held that ‘plain
legal prejudice' does not result merely from the prospect
of a second lawsuit on identical issues.”).
does it appear from the record, that granting
petitioner's motion may cause petitioner to
“unwittingly fall into a procedural trap created by
the intricacies of habeas corpus law.” As noted above,
respondent contends that the petition in the instant action
was filed after expiration of the applicable limitations
period. Therefore, any future petition filed by
petitioner will face the same statute-of-limitations hurdle
as the instant action. Cf. Henderson, supra, 2010 WL
2572698, at *3 (because the petitioner was “fully
cognizant” of the possibility that a renewed petition
would be time-barred, the court found that he “cannot
be said to have unwittingly fallen into a procedural
trap”); see also Martin, supra, 2014
WL 1271020, at *3 (in a case where the petitioner “was
notified plainly by the Magistrate Judge . . . of the
potential statute-of-limitations bar to review he may face in
filing a subsequent habeas petition after dismissal without
prejudice” and was provided the opportunity to withdraw
his request for dismissal without prejudice and did not do
so, the district court held that it could “properly
dismiss [the habeas petition] without prejudice under Rule
in the absence of objection from respondent or requisite
showing of prejudice to the respondent, it is
RECOMMENDED that petitioner's motion to
dismiss the instant petition without prejudice (Doc. 8) be
IS SO RECOMMENDED.
 Under Rule 12 of the Rules Governing
Section 2254 Cases in the United States District Courts, 28
U.S.C. foll. § 2254, the Federal Rule of Civil Procedure
may be applied in this federal habeas case to the extent it
is “not inconsistent” with the rules governing
§ 2254 petitions. Cf. Henderson v. Hall, No.
1:09cv2058, 2010 WL 2572698, at *2 (N.D. Ohio June 4, 2010)
(Report & Recommendation) (quoting Ortega v.
Trombley, No. 2:07cv10456, 2007 WL 781878, at *1 (E.D.
Mich. Mar. 13, 2007) (“Federal Rule of Civil Procedure
41(a)(2), ‘the civil procedure rule governing voluntary
dismissals, applies to federal habeas
proceedings.'”), adopted, 2010 WL 2572652
(N.D. Ohio June 21, 2010).
 Specifically, respondent contends that
under 28 U.S.C. § 2244(d)(1)(A), petitioner's
conviction became final on August 7, 2016, upon expiration of
the 45-day limit for filing an appeal to the Ohio Supreme
Court following the Ohio Court of Appeals' June 22, 2016
direct appeal decision. (Doc. 7 at PageID 210). The
limitations period ran for 44 days until it was tolled during
the adjudication of petitioner's application to reopen
his appeal pursuant to Ohio App. R. 26(B). Following the Ohio
Supreme Court's May 17, 2017 decision declining
jurisdiction over his appeal, the limitations ran an
additional 321 days and expired on April 3, 2018.
(Id.). Petitioner did not file his habeas petition
until May 31, 2018. (See Doc. 3 at PageID 41).
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