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Johnson v. Department of Corrections

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

March 20, 2015

JERRY JOHNSON, Petitioner,
v.
DEPARTMENT OF CORRECTIONS, Respondent.

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

VIRGINIA A. PHILLIPS, District Judge.

I.

BACKGROUND

On February 20, 2015, 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 petitioner's 1999 conviction in the Riverside County Superior Court in case number INF028556. (Pet. at 2).

On February 23, 2015, the Magistrate Judge issued an order requiring petitioner to show cause, on or before March 16, 2015, why the Petition should not be dismissed as successive to his earlier petition in case number ED CV 01-393-VAP (PLA), which was dismissed on the merits on March 30, 2005. (Dkt. No. 2). On March 9, 2015, petitioner filed a "Request for Dismissal of Petition" ("Request"). (Dkt. No. 4).

II.

DISCUSSION

In the Request, petitioner requests the Court to dismiss his Petition without prejudice "until such time that he is able to rectify the problem at hand." (Request at 1). The Court construes this document as a notice of voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1) ("Rule 41"). Rule 41 allows for the voluntary dismissal of an action by a plaintiff (or petitioner)[1] without prejudice and without a court order before the opposing party serves either an answer or a motion for summary judgment. Fed.R.Civ.P. 41(a)(1); Hamilton v. Shearson-Lehman Am. Express, Inc., 813 F.2d 1532, 1534 (9th Cir. 1987). Respondent has not filed either an answer or a motion for summary judgment.

Accordingly, the Court finds that dismissal of the Petition is warranted.

III.

ORDER

As petitioner may dismiss the action even without a court order since no answer has been served, the Court hereby dismisses the Petition without prejudice to petitioner filing a new action if and when he obtains permission to file a successive petition.[2]


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