Free Response to Motion - District Court of Delaware - Delaware

Case 1:05-cv-00883-SLR

Document 22

Filed 06/06/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Petitioner, : : v. : : RICHARD KEARNEY, : Warden, and CARL C. DANBERG, : Attorney General for the State of Delaware, : : Respondents. : DWIGHT W.H. PERKINS, JR.,

Civ. Act. No. 05-883-SLR

ANSWER TO MOTION FOR VOLUNTARY DISMISSAL 1. Dwight Perkins applied to this Court for a writ of habeas corpus in a petition

dated December 20, 2005, challenging his conviction and sentence for a violation of probation and a conviction by guilty plea for second degree robbery and two related weapons offenses. D.I. 2. On April 24, 2006, state prosecutors filed an answer to the federal habeas petition and certified copies of the state supreme court record. D.I. 17 & 19. In a motion dated May 25, 2006, Perkins has moved to voluntarily dismiss his petition without prejudice to exhaust state remedies. D.I. 21. 2. Because respondents' answer was served before Perkins' request for dismissal, he

is not entitled to dismissal as a matter of right. See FED. R. CIV. P. 41(a)(1). Instead, dismissal is available only if the Court, in the exercise of its discretion, concludes that the request should be honored or if the respondents consent. FED. R. CIV. P. 41(a); Clark v. Tansy, 13 F.3d 1407 (10th Cir. 1993). Respondents consent to dismissal without prejudice.

Case 1:05-cv-00883-SLR

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Filed 06/06/2006

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For the foregoing reasons, the petition for a writ of habeas corpus should be dismissed without prejudice for Perkins to exhaust his state court remedies.

/s/ Elizabeth R. McFarlan Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 3759 [email protected] Date: June 6, 2006

Case 1:05-cv-00883-SLR

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Filed 06/06/2006

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CERTIFICATE OF SERVICE I hereby certify that on June 6, 2006, I electronically filed an Answer to Motion for Voluntary Dismissal with the Clerk of Court using CM/ECF. I also hereby certify that on June 6, 2006, I have mailed by United States Service, two copies of the Answer to Motion for Voluntary Dismissal to the following non-registered participant:

Dwight W.H. Perkins, Jr. SBI No. 229328 Sussex Correctional Institution P.O. Box 500 Georgetown, DE 19947

/s/ Elizabeth R. McFarlan Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 3759 [email protected]