United States District Court, C.D. California, Western Division
June 18, 2015
ALVILEN DUKE, Petitioner,
DAVID LONG, Warden, Respondent.
ORDER RE VOLUNTARY DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 41(a)(1)
GEORGE H. KING, Chief District Judge.
On April 16, 2015, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition" or "Pet."). The Petition challenges petitioner's conviction in the Los Angeles County Superior Court in case number BA394774. (Pet. at 2).
On April 21, 2015, after explaining the requirement to exhaust and concluding that it appeared petitioner had not exhausted his claims in the California Supreme Court and that the Petition was either fully or partially unexhausted, the Magistrate Judge issued an order requiring petitioner to show cause, no later than May 19, 2015, why the Petition should not be dismissed as a fully or partially exhausted petition. (Dkt. No. 3). The Magistrate Judge advised petitioner that his failure to timely file a response to the Order to Show Cause would result in a recommendation that the Petition be dismissed as unexhausted, and for failure to prosecute and follow court orders. (Dkt. No. 3 at 3). The Magistrate Judge also advised petitioner that the filing of a petition for federal habeas corpus relief does not toll the AEDPA's statute of limitations. (Dkt. No. 3 at 3 n.3 (citing Duncan v. Walker, 533 U.S. 167, 172, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001)). On June 12, 2015, petitioner filed a document requesting the Court to "withdraw this case." ("Request"). (Dkt. No. 15).
In the Request, petitioner states that he has forwarded a habeas petition to the California Supreme Court, and "would like to respectfully withdraw this case from you[r] court, and give the State an opportunity to answer the 8 grounds - 90 pages." (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 a petitioner) 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, based on petitioner's Request, the Court finds that dismissal of the Petition is warranted.
As Rule 41 (a)(1) of the Federal Rules of Civil Procedure permits petitioner to dismiss the action even without a court order since no answer has been served, the Court hereby dismisses the Petition without prejudice.