UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHN RAY,

Petitioner,

v.

SHERRY L. BURT,

Respondent. 

/

Case Number: 2:09-CV-13653

Honorable Patrick J. Duggan

OPINION AND ORDER GRANTING PETITIONER’S REQUEST TO

WITHDRAW HIS MOTION TO HOLD HIS HABEAS PETITION IN ABEYANCE

AND GRANTING HIS MOTION TO WITHDRAW HIS HABEAS CORPUS

PETITION

On September 15, 2009, Petitioner John Ray filed a pro se petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, a state inmate currently

incarcerated at the Florence Crane Correctional Facility in Coldwater, Michigan,

challenges his conviction in 2007 for aggravated stalking. Respondent filed a response to

the petition on March 19, 2010. On April 19, 2010, Petitioner filed a motion to hold his

petition in abeyance; however on October 25, 2010, he filed a motion to withdraw his

habeas petition in which he also requests to withdraw his motion to hold his petition in

abeyance. 

In his motion to withdraw his habeas corpus petition, Petitioner asks the Court to

allow him to withdraw his petition because he has been unable to locate case law to

support his habeas claims. He also asks the Court to allow him to withdraw his Motion to
2

Hold Petition for Writ of Habeas Corpus in Abeyance. 

Rule 11 of the Rules Governing Section 2254 Cases provides that the Federal

Rules of Civil Procedure are applicable to habeas corpus proceedings where such rules

are not inconsistent with the Rules Governing Section 2254 Cases. Federal Rule of Civil

Procedure 41(a)(2) provides that, once an answer or motion for summary disposition has

been filed, a matter may be voluntarily dismissed “at the plaintiff’s request only by court

order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). Whether to

grant a voluntary dismissal pursuant to Rule 41(a)(2) is a matter within the district court’s

discretion. Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994). In determining

whether to grant a dismissal without prejudice, the Court should consider whether the

defendant would suffer “‘plain legal prejudice’” as a result of a dismissal without

prejudice. Id. (quoting Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217

(1947)). The prospect of a second lawsuit, by itself, is insufficient to establish “plain

legal prejudice.” Id.

In this case, voluntary dismissal of the petition is appropriate because there is no

evidence that Respondent will suffer prejudice from the dismissal. The prospect of a

second habeas petition in the future, by itself, is insufficient to establish prejudice. See

Thomas v. Scutt, No. 09-cv-13819, 2010 WL 3940645, at *1 (E.D. Mich. Oct. 6, 2010)

(citing Doster v. Jones, 60 F. Supp. 2d 1258, 1260 (M.D. Ala. 1999)); Williams v.

Caruso, No. 07-cv-11291, 2008 WL 544954, at *1 (E.D. Mich. Feb. 25, 2008). The

Court therefore grants Petitioner’s request to withdraw his petition for a writ of habeas
3

corpus. As such, Petitioner’s request to withdraw his motion to hold that petition in

abeyance also is granted.

Accordingly,

IT IS ORDERED, that Petitioner’s Motion to Withdraw Habeas Corpus Petition

and Request to Withdraw Motion to Hold Petition for Writ of Habeas Corpus in

Abeyance are GRANTED;

IT IS FURTHER ORDERED, that the matter is DISMISSED WITHOUT

PREJUDICE. 

DATE: December 9, 2010

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

John Ray, #191746

Florence Crane Correctional Facility

38 Fourth Street

Coldwater, MI 49036

Andrea M. Christensen, Esq.