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Joe Hernandez Lopez v. Dave B. Long

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 5, 2013

JOE HERNANDEZ LOPEZ,
PETITIONER,
v.
DAVE B. LONG, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER GRANTING PETITIONER'S MOTION FOR VOLUNTARY DISMISSAL OF THE PETITION (DOC. 24) ORDER DISMISSING THE PETITION WITHOUT PREJUDICE AND DIRECTING THE CLERK TO CLOSE 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. The matter was referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303. A response to the petition has been filed, and Petitioner filed a traverse on July 18, 2012.

On December 17, 2012, Petitioner filed a document, which was directed to whom it might concern, in which Petitioner stated that he wanted to stop all proceedings in this case. On December 28, the Court issued an order in which the Court 1) treated Petitioner's filing as a motion for voluntary dismissal of the petition, 2) directed Respondent to file opposition or a statement of non-opposition to the motion, and 3) permitted Petitioner to file a reply within fourteen days of service of Respondent's response. Respondent filed a statement of non-opposition to the motion on January 10, 2013. Both the Court's order and the Respondent's statement were served by mail on Petitioner. Over fourteen days have passed since the service of the statement of non-opposition on Petitioner, but no reply has been filed.

Subject to other provisions of law, a Petitioner may voluntarily dismiss an action without leave of court before service by the adverse party of an answer or motion for summary judgment. Fed. R. Civ. P. 41(a). Otherwise, an action shall not be dismissed except upon order of the court and upon such terms and conditions as the court deems proper. Id.

Here, although an answer and traverse have been filed, Respondent has no objection to the dismissal of the petition.

The Court will grant Petitioner's motion to dismiss the petition.

The dismissal of the petition will be denominated as a dismissal without prejudice. However, Petitioner is forewarned that there is a one-year limitations period in which a federal petition for writ of habeas corpus must be filed. 28 U.S.C. § 2244(d)(1). In most cases, the one-year period begins to run at the conclusion of direct review. Id. The limitations period is tolled while a properly filed request for collateral review is pending in state court. 28 U.S.C. § 2244(d)(2); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 120 S.Ct. 1846 (2000). However, the limitations period is not tolled for the time such an application is pending in federal court. Duncan v. Walker, 121 S.Ct. 2120, 2129 (2001).

Accordingly, it is ORDERED that: 1) Petitioner's motion for voluntary dismissal is GRANTED; and

2) The petition for writ of habeas corpus is DISMISSED without prejudice; and

3) The Clerk is DIRECTED to close this action because this order terminates the proceeding in its entirety.

IT IS SO ORDERED.

20130205

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