United States District Court, E.D. California
ANTONIO P. PALOMINOS, Petitioner,
ROY E. BARNES, Warden, Respondent.
ORDER TO GRANT PETITIONER'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (Doc.9)
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE (Doc. 1)
ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS FILED May 22, 2014 (Doc.7) ORDER
DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE FILE ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
LAWRENCE J. O'NEILL, District Judge.
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The instant petition was filed on May 14, 2014 in the United States District Court for the Northern District of California, and was transferred to this Court on May 20, 2014. (Docs. 1, 3, & 4). In the course of conducting a preliminary screening of the petition, it came to the Court's attention that Petitioner had previously filed at least two prior federal habeas petitions challenging this same conviction. Accordingly, on May 22, 2014, the Magistrate Judge issued Findings and Recommendations to dismiss the case as successive. (Doc. 7). Those Findings and Recommendations gave all parties 21 days within which to file objections. On June 26, 2014, before the Findings and Recommendations were adopted by the District Judge, Petitioner filed the instant motion to dismiss, contending that he now wishes to voluntarily dismiss his petition in this Court and instead seek permission from the United States Court of Appeals for the Ninth Circuit to file a successive petition. (Doc. 9).
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, no answer has been served or filed. Accordingly, Petitioner is entitled to dismiss the petition without leave of Court. Id.
Moreover, the Court declines to issue a certificate of appealability. A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell , 537 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings.
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the ...