Opinion
CV F 06-0847 AWI WMW HC, [Doc. 8].
August 14, 2006
FINDINGS AND RECOMMENDATIONS RE MOTION TO DISMISS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.
On August 10, 2006, Petitioner filed a motion for voluntary dismissal of this action without prejudice. Pursuant to Rule 41, Federal Rules of Civil Procedure, a petitioner may properly voluntarily dismiss an action at any time before the adverse party files an answer. Petitioner should take note, however, that Rule 41 also provides that unless otherwise stated, such a dismissal is without prejudice, except that a second voluntary dismissal based on the same claim in either state or federal court works as an adjudication on the merits.
Based on Petitioner's request, IT IS HEREBY RECOMMENDED that this petition for writ of habeas corpus be dismissed without prejudice and that this case be closed.
These Findings and Recommendation are submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.