_____________

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, Circuit

Judges.

_____________

HANSEN, Circuit Judge.

Harold W. Clarke, Warden of the Nebraska Penal & Correctional

Complex, and Donald Stenberg, Nebraska's Attorney General (collectively

"the respondents"), appeal the district court's dismissal without prejudice

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 was

convicted in 1978 on two counts of first degree murder and one count of

first degree sexual assault. Williams received a sentence of death on each

murder count and a sentence of
2

imprisonment not to exceed 25 years for the first degree sexual assault

conviction. The Supreme Court of Nebraska affirmed Williams's convictions

and sentences. 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, 352

N.W.2d 538 (Neb. 1984); State v. Williams, 396 N.W.2d 114 (Neb. 1986). 

In 1987, Williams filed his first federal petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. The district court granted

habeas corpus relief with regard to one death sentence and denied relief

on the 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, Williams

filed a second federal habeas petition, alleging new evidence of juror

misconduct. Before any action was taken on the petition, however, the

Supreme Court of Nebraska granted Williams a stay of execution to allow an

evidentiary hearing in his third state postconviction relief action,

alleging the same claim. Williams then filed a motion to dismiss this

second federal habeas corpus petition without prejudice, in light of the

state court proceedings. The respondents requested an enlargement of time

in which to respond to the motion to dismiss, which the district court

denied. 

The district court sustained Williams's motion to dismiss without

prejudice, construing it as a Federal Rule of Civil Procedure 41(a)(1)

voluntary notice of dismissal. The respondents filed a motion requesting

reconsideration of the order of dismissal, which has not been ruled upon.

Williams then filed a
3

properly cast Rule 41(a)(1) notice of dismissal. The same day, the

respondents filed a notice of appeal.

We must first determine the scope of our jurisdiction. Williams

argues that this court lacks jurisdiction to entertain the respondents'

appeal, because a motion to reconsider is still pending before the district

court and because a voluntary dismissal prior to responsive pleading exists

as a matter of right and is not appealable. 

Federal Rule of Civil Procedure 41(a)(1) allows a plaintiff to

dismiss an action without order of the court by filing a notice of

dismissal at any time before the adverse party serves an answer or a motion

for summary judgment. Rule 41(a)(1) voluntary dismissal is without

prejudice unless the plaintiff has previously dismissed an action including

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 to 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 it as a notice of voluntary

dismissal, and Williams later filed a properly cast Rule 41(a)(1) notice

of voluntary dismissal.

On appeal, "we consider only whether an answer or a motion for

summary judgment was filed before the notice of voluntary dismissal." Id.

No answer or motion for summary judgment had been filed in this case prior

to the voluntary dismissal, and the respondents do not contend otherwise.

Instead, the respondents contend that it is inappropriate even to apply

Rule 41(a)(1) in the habeas context and that the district court abused its

discretion by dismissing Williams's second habeas petition without allowing

them an opportunity to demonstrate an abuse of the writ. 
4

We acknowledge that the rules of civil procedure apply to habeas

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 District

Courts. The respondents caution that if Rule 41(a)(1) applies in the

habeas context, death row inmates could use it as a stalling tactic to

avoid a scheduled execution. This fear, however, is not borne out in the

present 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 pursue state court remedies that became available only after he had

filed his federal habeas petition. The voluntary dismissal was not used

as a stalling tactic in this case because available 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). We

conclude that in this particular context, a Rule 41(a)(1) voluntary

dismissal is both appropriate and consistent with the rules governing

habeas corpus cases. 

"The effect of a voluntary dismissal without prejudice pursuant to

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)). Because we conclude that Rule

41(a)(1) applies in this context and that no answer or summary judgment

motion had been filed prior to the notice of voluntary dismissal, this case

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.