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Perez v. Perez

United States District Court, C.D. California, Western Division

March 16, 2015

STEVEN JOHN PEREZ, Petitioner,
v.
TIM PEREZ, Respondent.

ORDER RE VOLUNTARY DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 41(a)(1)

DALE S. FISCHER, District Judge.

I.

BACKGROUND

On October 22, 2014, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. ยง 2254 ("Petition" or "Pet."). The Petition challenges his 2002 conviction in the Los Angeles County Superior Court in case number KA055846. (Pet. at 2).

On November 24, 2014, the Magistrate Judge issued an order requiring petitioner to show cause, on or before December 22, 2014, why the Petition should not be dismissed as successive. (Dkt. No. 8). When, as of February 13, 2015, petitioner had not filed a response to the order to show cause, the Magistrate Judge issued a Report and Recommendation recommending that the petition be dismissed as successive. (Dkt. No. 17). On February 20, 2015, petitioner filed a request for an extension of time to file an answer to the order to show cause (Dkt. No. 18), and a motion for an order directing the clerk to provide petitioner with a copy of the case docket and the November 24, 2014, order to show cause. (Dkt. No. 19). On February 23, 2015, the Magistrate Judge denied petitioner's request for an extension of time to file an answer, and ordered the court clerk to provide petitioner with a copy of the docket, the November 24, 2014, order to show cause, the Report and Recommendation, and the Notice of Filing of the Report and Recommendation. (Dkt. No. 20). The Magistrate Judge also extended the deadline for petitioner to file objections to the Report and Recommendation to March 19, 2015. (Dkt. No. 20).

On March 9, 2015, petitioner filed four documents:

(1) "Petitioner Declines to Object to Report and Recommendation of U.S. Magistrate Judge" ("Notice") (Dkt. No. 21);
(2) "Petitioner's Response to This Court's Order to Show Cause, Dismissal of Successive Petition" ("Response") (Dkt. No. 22);
(3) "Petitioner's Request to File an Amended Petition Under 28 U.S.C. 2254" ("Request") (Dkt. No. 23); and
(4) "Petitioner's Request for Stay and Abeyance, Under Code of Civil Procedure, Rule 62(b)(2)" ("Stay Request") (Dkt. No. 24).

II.

DISCUSSION

A. NOTICE OF VOLUNTARY DISMISSAL

In his Notice, petitioner states that he declines to object to the Magistrate Judge's February 13, 2015, Report and Recommendation and "elects to withdraw the petition as it is successive." (Notice at 1). The Court construes this document as a notice of voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1). Petitioner's Response confirms that petitioner "voluntarily seeks of the court to withdraw the petition initiated on October 22, 2014." (Response at 1). In the Response, petitioner also ...


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