The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
INFORMATIONAL ORDER CONCERNING DISMISSAL WITHOUT PREJUDICE AND ORDER REQUIRING PETITIONER TO FILE WITHIN FOURTEEN (14) DAYS OF SERVICE OF THIS ORDER A STATEMENT OF INTENTION TO PROCEED WITH THE MOTION FOR DISMISSAL ORDER DIRECTING PETITIONER TO SHOW GOOD CAUSE WITHIN FOURTEEN (14) DAYS OF SERVICE OF THIS ORDER FOR DISMISSAL OF THE ACTION
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in signed writings filed by Petitioner on December 17, 2009, and on behalf of Respondent on January 12, 2010. (Docs. 5, 10). Pending before the Court is Petitioner's motion for dismissal of the petition "WITHOUT PREJUDICE TO PERSUE (sic) UNEXHAUSTED CLAIM," filed in this Court by Petitioner on August 4, 2010.
In the petition, which was filed on December 3, 2009, Petitioner challenged his 2007 convictions of assault, corporal injury to a co-habitant, pimping, and disobeying a domestic relations order sustained in Fresno County. An amended petition was filed on March 24, 2010. In the twenty-four-page answer to the first amended petition (FAC) filed by Respondent on May 21, 2010, Respondent admitted the timeliness of the petition and that the claims appear to have been exhausted; Respondent argued that to the extent any claim might be deemed unexhausted, the claims should be denied on the merits. (Ans. 6.) The answer responds on the merits to Petitioner's first and third claims concerning alleged violations of due process based on the sufficiency of the evidence and the trial court's instruction the elements of the offense of pimping. Likewise, the answer addresses the merits of Petitioner's second claim that California's pimping statute is unconstitutionally vague and/or overbroad, and his fourth claim that the instruction on reasonable doubt violated due process.
No traverse was filed, although the time for filing a traverse has expired.
II. Informational Order re: Dismissal without Prejudice
Petitioner now moves for a dismissal without prejudice of the petition in order to exhaust another claim, namely, that the trial court erred in denying Petitioner's new trial motion. (Mot. 2.)
However, it is possible and even likely that should the instant petition be dismissed, Petitioner would be unable to file a subsequent petition. This is because the pendency in this Court of a properly filed petition pursuant to 28 U.S.C. § 2254 does not toll the running of the statute of limitations under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 172 (2001).
The Court notes that Petitioner acknowledges the principle that it is a petition for habeas relief that is properly filed in a state court that tolls the running of the statute. (Mot. 1.) It therefore appears that Petitioner proceeds with an understanding that the running of the statutory period of limitations has not been tolled by the pendency of the instant proceedings, and that considering the circumstances of Petitioner's case, dismissal might result in the loss of an opportunity to file a timely petition in this Court, despite such a dismissal otherwise being described as a dismissal "without prejudice."
However, in an abundance of caution, the Court will direct Petitioner to file in this Court no later than fourteen (14) days after the date of service of this order either a withdrawal of the motion to dismiss, or a statement that Petitioner intends to proceed with his motion for dismissal despite his understanding that the statute of limitations may preclude him from being able to file a timely petition in the future.
II. Showing Good Cause for Dismissal
On December 22, 2009, there issued a scheduling order setting forth deadlines for submission of an answer to the original petition and for filing a traverse. (Doc. 6.) In denying a motion to dismiss on March 24, 2009, the Court noted that the terms of the previous scheduling order remained in effect. (Doc. 14, 6.) The initial scheduling order stated that if no traverse were filed, then the petition would be deemed submitted upon the passage of thirty (30) days after the date the answer was filed. (Doc. 6, 2.) Thus, the petition in the instant action is deemed to have been submitted to the Court thirty (30) days after the answer was filed, or on June 21, 2010.
Further, with respect to the unexhausted claim concerning denial of Petitioner's new trial motion, this Court has previously ruled in connection with Respondent's motion to dismiss that the claim was not exhausted. Indeed, about five months ago, Petitioner admitted non-exhaustion in response to Respondent's motion to dismiss, and Petitioner requested that the claim be dismissed and that he be allowed to proceed on the exhausted claims. (Docs. 13, 14 at 5.) The Court granted Petitioner's motion to file an amended petition without the ...