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Lopez v. On Habeas Corpus

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 7, 2009

JIMMY LARA LOPEZ, PETITIONER,
v.
ON HABEAS CORPUS, RESPONDENT.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING MOTION TO DISMISS

[Doc. #8]

ORDER DISMISSING PETITION WITHOUT PREJUDICE AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented by Anthony O. Egbase, Esq. Petitioner has consented to the jurisdiction of the Magistrate Judge. On March 24, 2009, the undersigned issued an order directing Petitioner to show cause why the petition should not be dismissed for failure to exhaust state remedies. On April 24, 2009, Petitioner filed a motion to dismiss the petition for writ of habeas corpus without prejudice. Petitioner admits the instant petition is unexhausted. Pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure, "an action may be dismissed by the [Petitioner] without order of court by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, . . . ."

Accordingly, IT IS HEREBY ORDERED that Petitioner's motion to dismiss is GRANTED and the petition is DISMISSED without prejudice. The Clerk of Court is DIRECTED to enter judgment.

IT IS SO ORDERED.

20090507

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