COOK v. PHILBEN

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION DANIEL DELANE COOK, Petitioner, CIVIL ACTION NO. v. 3:23-cv-00028-TES-CHW Warden EDWARD PHILBIN, Respondent. ORDER OF DISMISSAL Before the Court is Petitioner Daniel Delane Cook’s Motion to Withdraw [Doc. 9] his Petition [Doc. 1] for writ of habeas corpus under 28 U.S.C. § 2254 . As grounds for his motion, Petitioner states that he “wishes to withdraw” the instant Petition “to prevent [a frivolous] cause[.]” [Doc. 9, p. 1]. In accordance with Smith v. Williams, the Court treats Petitioner’s motion as a “self-executing notice of dismissal under [Federal Rule of Civil Procedure] 41.” 67 F.4th 1139, 1140 (11th Cir. 2023). Rule 41(a)(1) “entitles a plaintiff to voluntarily ‘dismiss an action without a court order by filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.’” Id. (quoting Fed. R. Civ. P. 41(a)(1)). This notice is “effective immediately upon filing” and deprives the Court of jurisdiction. Smith, 67 F.4th at 1140–41 (first quoting Anago Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272, 1277 (11th Cir. 2012) and then quoting Absolute Activist Value Master Fund Ltd. v. Devine, 998 F.3d 1258, 1265 (11th Cir. 2021). Accordingly, the Court DISMISSES the instant Petition [Doc. 1] without prejudice pursuant to Rule 41(a) and TERMINATES Petitioner’s Motion to Withdraw [Doc. 9] as moot. SO ORDERED, this 13th day of June, 2023. S/ Tilman E. Self, III TILMAN E. SELF, III, JUDGE UNITED STATES DISTRICT COURT