Opinion
Case No. CV 14-1137-DMG (KK)
01-30-2015
ANTHONY FONTANA, Petitioner, v. CONNIE GIPSON, Respondent.
ORDER GRANTING PETITIONER'S MOTION TO WITHDRAW HABEAS CORPUS PETITION
Petitioner Anthony Fontana, proceeding pro se, has filed a Motion to Withdraw his Habeas Corpus Petition. As discussed below, this Court GRANTS the Motion and orders the instant action DISMISSED without prejudice.
I.
PROCEDURAL BACKGROUND
On June 5, 2014, Anthony Fontana ("Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254(d), challenging the sentence imposed for his 2011 convictions for burglary, petty theft with a prior, and robbery, in Riverside County Superior Court.
On October 2, 2014, Respondent filed an Answer and an accompanying Memorandum of Points and Authorities ("Mem."), contending the Petition should be dismissed as untimely under 28 U.S.C. § 2244(d)(1). (Dkt. 20; 21). On November 19, 2014, the Court issued a Report and Recommendation that the Petition be dismissed as untimely.
On December 16, 2014, Petitioner filed a Motion to Withdraw Habeas Corpus Petition ("Motion"). (Dkt. 26). Respondent has not filed an opposition to the Motion.
II.
DISCUSSION
In general, 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." Fed. R. Civ. Pr. 41(a)(2).
A motion for voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2) should be granted unless a defendant can show that it will suffer some plain legal prejudice as a result of the dismissal. See Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2010); see also Stevedoring Svcs. Of America v. Armilla Int'l B.V., 889 F.2d 919, 921 (9th Cir. 1989) (stating the purpose of Rule 41(a)(2) is "to permit a plaintiff to dismiss an action without prejudice so long as the defendant will not be prejudiced . . . or unfairly affected by dismissal."). "[L]egal prejudice does not result merely because the defendant will be inconvenienced by having to defend in another forum or where a plaintiff would gain a tactical advantage by that dismissal." Smith, 263 F.3d at 976 (citation omitted). Rather, legal prejudice is limited to "'prejudice to some legal interest, some legal claim, some legal argument.'" Id. (quoting Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996).
Here, Respondent has not filed an opposition to the Motion. Nor has Respondent suggested she will be legally prejudiced should the Court grant the Motion. Thus, under the instant circumstances, the Court concludes Respondent will not be legally prejudiced by the dismissal of this action, and therefore orders Petitioner's Motion be GRANTED.
III.
ORDER
IT IS THEREFORE ORDERED that: (1) Petitioner's Motion for Voluntary Withdrawal of the Petition is GRANTED; and (2) the Petition is DISMISSED without prejudice.
Petitioner is forewarned that there is a one-year limitations period in which a federal petition for writ of habeas corpus must be filed. 28 U.S.C. § 2244(d)(1). In most cases, the one-year period begins to run at the conclusion of direct review. Id. The limitations period is tolled while a properly filed request for collateral review is pending in state court. 28 U.S.C. § 2244(d)(2); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied,529 U.S. 1104, 120 S. Ct. 1846, 146 L. Ed. 2d 787 (2000). However, the limitations period is not tolled for the time such an application is pending in federal court. Duncan v. Walker, 533 U.S. 167, 181-82, 121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001). DATED: January 30, 2015
/s/_________
DOLLY M. GEE
UNITED STATES DISTRICT JUDGE
Presented by: /s/_________
Kenly Kiya Kato
UNITED STATES MAGISTRATE JUDGE