IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

WILLIAM JOSEPH 

SUMMERVILLE,

§

§

 Petitioner, §

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v. § No. 3:22-cv-02150-L (BT)

§

DIRECTOR, TDCJ-CID

 Respondent.

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§

 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Pending before the Court is a filing from William Joseph Summerville, a 

Texas prisoner proceeding pro se, informing the Court that he is “withdrawing” his 

federal habeas application. ECF No. 32. As explained below, absent objection from 

Summerville, the Court should construe this withdrawal as a motion to voluntarily 

dismiss under Fed. R. Civ. P. 41(a)(2), grant that motion, and dismiss this action 

without prejudice.

Background

Summerville applied for federal habeas relief pursuant to 28 U.S.C. § 2254. 

ECF No. 3. The State responded, arguing that Summerville’s claims are timebarred, or, alternatively, that some of his claims are procedurally defaulted and the 

rest are substantively meritless. ECF No. 26 at 9-22. Rather than reply to the 

State’s response, Summerville filed a document to “inform the Court” that he is 

“withdrawing” his habeas petition. ECF No. 32. Summerville admits that he did 

not exhaust some of his claims and says that he is “sorry for wasting the Courts 

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[sic] time and energy.” ECF No. 32. He details the difficulty he has had navigating 

the legal system without an attorney and advises that he is seeking pro-bono 

counsel. ECF No. 32. 

Analysis

It appears that Summerville seeks to dismiss this action pursuant to Federal 

Rule of Civil Procedure 41(a)(1)(A)(i), which allows a plaintiff or petitioner to 

dismiss his or her action without Court order before the opposing party serves an 

answer or summary judgment motion. But because the State has responded to 

Summerville’s petition, the parties must either enter a stipulation of dismissal or 

Summerville must move the Court dismiss his action pursuant to Fed. R. Civ. P. 

41(a)(2), which allows the Court to dismiss an action on the petitioner’s motion on 

terms that the Court finds proper. See Kramer v. Butler, 845 F.2d 1291, 1294 (5th 

Cir. 1988) (explaining that Fed. R. Civ. P. 41(a)(2) may be applied in a habeas 

proceeding). Unless otherwise stated, such a dismissal is without prejudice. See

Fed. R. Civ. P. 41(a)(2). 

Thus, the Court should liberally construe Summerville’s filing (ECF No. 32) 

as a motion to voluntarily dismiss pursuant to Fed. R. Civ. P. 41(a)(2). See, e.g., 

Williams v. Caliber Home Loans, 2016 WL 8715661, at *2 (N.D. Tex. Nov. 7, 2016), 

rec. accepted 2016 WL 8711280 (N.D. Tex. Dec. 16, 2016) (construing notice of 

dismissal filed after defendant had appeared as a motion to dismiss under Fed. R. 

Civ. P. 41(a)(2)); Erickson v. Pardus, 551 U.S. 89, 94 (2007) (document filed by 

pro se party should be liberally construed). 

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Such motions for voluntary dismissal “should be freely granted unless the 

non-moving party will suffer some plain legal prejudice other than the mere 

prospect of a second lawsuit.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 

(5th Cir. 2002) (citing Manshack v. Southwestern Elec. Power Co., 915 F.2d 172, 

174 (5th Cir. 1990)). “Therefore, faced with a Rule 41(a)(2) motion the district court 

should first ask whether an unconditional dismissal will cause the non-movant to 

suffer plain legal prejudice. If not, it should generally, absent some evidence of 

abuse by the movant, grant the motion.” Id. (footnote omitted).

The Court does not envision any “plain legal prejudice” to the State should 

Summerville’s habeas action be dismissed, so, the Court should grant 

Summerville’s Fed. R. Civ. P. 41(a)(2) motion unless he notifies the Court through 

objections to this recommendation that he does not intend to dismiss this action.

Summerville is advised that a 28 U.S.C. §2254 petition, absent tolling, must 

be filed within one year from the time the limitations period begins to run under 

28 U.S.C. § 2244(d)(1). And this limitations period is not tolled by a federal habeas 

application. See, e.g., Duncan v. Walker, 533 U.S. 167 (2001) (the pendency of a 

federal habeas application does not toll the AEDPA’s limitations period); Jones v. 

Lumpkin, 22 F.4th 486, 490 n.1 (5th Cir. 2022) (“It is well settled that the time 

during which a federal habeas application is pending does not serve to statutorily 

toll the limitations period under 28 U.S.C. § 2244(d)(2).”) (emphasis in original). 

Thus, if Summerville dismisses this action and tries to refile it, it may be barred by 

the AEDPA’s statute of limitations to the extent that it is not already. 

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Recommendation

Absent objection from Summerville, the Court should construe his filing 

withdrawing his federal habeas petition (ECF No. 32) as a motion to voluntarily 

dismiss this action pursuant to Fed. R. Civ. P. 41(a)(2), grant that motion, and 

dismiss this action without prejudice. 

Dated: December 6, 2023.

___________________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all parties in 

the manner provided by law. Any party who objects to any part of this report and 

recommendation must file specific written objections within 14 days after being 

served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). To be specific, 

an objection must identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and specify the place in the 

magistrate judge’s report and recommendation where the disputed determination 

is found. An objection that merely incorporates by reference or refers to the 

briefing before the magistrate judge is not specific. Failure to file specific written 

objections will bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the district 

court, except upon grounds of plain error. See Douglass v. United Services 

Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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