_____________ No. 95-2168

_____________ Robert E. Williams, * * Petitioner - Appellee, * Appeal from the United States * District Court for the v. * District of Nebraska. * Harold W. Clarke, Warden of the * Nebraska Penal & Correctional * Complex; Donald Stenberg, * Attorney General for the State * of Nebraska, * * Respondents - Appellants. *

_____________ Submitted: January 12, 1996 Filed: April 29, 1996

_____________ Before HANSEN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circui t Judges.

_____________ HANSEN, Circuit Judge.
Harold W. Clarke, Warden of the Nebraska Penal & Correctiona l Compl ex, and Donald Stenberg, Nebraska's Attorney General (collectivel y "the respondents"), appeal the district court's dismissal without prejudic e of Robert E. Williams's second petition for a writ of habeas corpus. We dismiss for lack of jurisdiction.
To put the discussion into context, we briefly review the procedural history of this case. Williams is a Nebraska death row inmate, who wa s convict ed in 1978 on two counts of first degree murder and one count o f first degree sexual assault. Williams received a sentence of death on eac h murder count and a sentence of

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imprisonment not to exceed 25 years for the first degree sexual assaul t conviction. The Supreme Court of Nebraska affir med Williams's convictions and sente nces. See State v. Williams , 287 N.W.2d 18 (Neb. 1979), cert
. denied , 449 U.S. 891 (1980). Williams twice sought state postconviction relief, and relief was ultimately twice denied. See State v. Williams , 35 2 N.W.2d 538 (Neb. 1984); State v. Williams , 396 N.W.2d 114 (Neb. 1986).

In 198 7, Williams filed his first federal petition for a writ o f habeas co rpus pursuant to 28 U.S.C. § 2254. The district court grante d habeas corpus relief with regard to one death sentence and denied relief
on th e other. See Williams v. Clarke , 823 F. Supp. 1486 (D. Neb. 1993 ) (subsequent history omitted). Williams appealed the denial of relief on the remaining death sentence, and we affirmed. See Williams v. Clarke , 40 F.3d 1529 (8th Cir. 1994), cert. denied , 115 S. Ct. 1397 (1995).

On March 22, 1995, the date of his scheduled execution, William s filed a second federal habeas petition, alleging new evidence of juro r misco nduct. Before any action was taken on the petition, however, th e Supreme Court of Nebraska granted Williams a sta y of execution to allow an
ev identiary hearing in his third state postconviction relief action , alleging the same claim. Williams then filed a motion to dismiss thi s second federal habeas corpus petition without prejudice, in light of the state court proceedings. The respondents reques ted an enlargement of time in which to respond to the motion to dismiss, which the district cour t denied.

The d istrict court sustained Williams's motion to dismiss withou t prejudice, construing it as a Federal Rule of Civil Procedure 41(a)(1 ) voluntary notice of d ismissal. The respondents filed a motion requesting reconsideration of th e order of dismissal, which has not been ruled upon. Williams then filed a

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properly cast Rule 41(a)(1) notice of dismissal. The same day, th e respondents filed a notice of appeal.

We must first determine the scope of our jurisdiction. William s argues that this court lacks jurisdiction to entertain the respondents ' appeal, because a motion to reconsider is still pending before the distric t court and because a voluntary dismissal prior to responsive pleading exist s as a matter of right and is not appealable.

Federal Rule of Civil Procedure 41(a)(1) allows a plaintiff t o dismiss an action without order of the court by filing a notice o f dismissal at any time before the adverse party serves an answer or a motio n for su mmary judgment. Rule 41(a)(1) voluntary dismissal is withou t prejudice unless the plaintiff has previously dismissed an action includin g the same claim in any other court. In ordinary civil cases, a notice of dismissal that complies with the rule operates as a matter of right upon notice t o the court, and permission of the court is not required

. Safeguard Business Sys., Inc. v. Hoeffel , 907 F.2d 861, 863 (8th Cir

. 1990). In this case, Williams's first motion to dismiss sought permission of the court, but the district court construed i t as a notice of voluntary dismissal, and Williams later filed a properly cast Rule 41(a)(1) notice of voluntary dismissal.

On ap peal, "we consider only whether an answer or a motion fo r summary judgment was filed before the notice of voluntary dismissal." Id. No answer or motion for summary judgment had bee n filed in this case prior to the voluntary dism issal, and the respondents do not contend otherwise. Ins tead, the respondents contend that it is inappropriate even to appl y Rule 41(a)(1) in the habeas context and that the district court abused its discretion by dismissing Williams's second habeas petition without allowin g them an opportunity to demonstrate an abuse of the writ.

### 4 We acknowledge that the rules of civil procedure apply to habea s corpus petitions only "when appropriate" and "to the extent that they are not inconsistent with " the rules governing habeas corpus cases. Rule 11, Rules Governing Section 2254 Proceedings in the United States Distric t Courts. T he respondents caution that if Rule 41(a)(1) applies in th e habeas context, death row inmates could use it as a stalling tactic t o avoid a scheduled exe cution. This fear, however, is not borne out in the presen t case. Williams voluntarily dismissed pursuant to Rule 41(a)(1 ) before an answer or a motion for summary judgment had been filed in order to pu rsue state court remedies that became available only after he ha d filed his federal habeas petition. The voluntary dismissal was not used as a stalling tactic in this case because availa ble state remedies must be exhausted before a writ of habeas corpus may be granted. 28 U.S.C

. § 2254(b). See also Rose v. Lundy , 455 U.S. 509, 515-16 (1982). W e conclu de that in this particular context, a Rule 41(a)(1) voluntar y dismis sal is both appropriate and consistent with the rules governin g habeas corpus cases.

"The effect of a voluntary dismissal without prejudice pursuant t o Rule 41(a) `is to render the proceedings a nullity and leave the parties as if the action had never been brought.'" Smith v. Dowden , 47 F.3d 940, 943 (8th Cir. 1995) ( quoting In re Piper Aircraft Distrib. Sys. Antitrust Litig. , 551 F.2d 213, 219 (8th Cir. 1977)). Bec ause we conclude that Rule 41(a)(1) applies in this context and that no answer or summary judgmen t motion had been filed prior to the notice of voluntary dismissal, this cas e is a nullity. Absent a final appealable order to support our jurisdiction , we can proceed no further.
Accordingly, we dismiss this appeal for lack of jurisdiction.

### 5 A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.