United States District Court, C.D. California
December 8, 2014
AMON MORRISON, Petitioner,
JEFF MACOMBER, Warden, Respondent.
MEMORANDUM AND ORDER GRANTING VOLUNTARY DISMISSAL
GEORGE H. WU, District Judge.
On July 1, 2014, pro se petitioner Amon Morrison filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. In the Petition, petitioner states that one of the three grounds he raises is unexhausted. After the court issued an Order to Show Cause why the petition should not be dismissed as mixed, on July 16, 2014 petitioner file a "Request for Stay in Abeyance, " asking the court to stay the action pursuant to Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). The court denied petitioner's stay request. Respondent has not yet answered or otherwise responded to the Petition.
On October 16, 2014, petitioner filed a document titled "Request to Withdraw Petition or Dismiss Without Prejudice, " in which petitioner requests voluntary dismissal of the Petition. Petitioner indicates that as it appears his time to file a federal habeas petition will not expire until August 2015, he wishes to dismiss the Petition without prejudice while he seeks to exhaust his unexhausted claim in the state courts.
Under Rule 41(a) of the Federal Rules of Civil Procedure, a plaintiff may 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." Fed.R.Civ.P. 41(a)(1)(A)(i). Such dismissal is without prejudice. Fed.R.Civ.P. 41(a)(1)(B).
No answer has yet been filed in this case. Accordingly, petitioner may voluntarily dismiss this action without prejudice.
IT IS THEREFORE ORDERED that petitioner's voluntary dismissal of this action is GRANTED, and that Judgment be entered denying the Petition and dismissing this action without prejudice.