Opinion
No. 2:20-cv-00299-SMJ
12-16-2020
BRANDON KEITH HUTCHINSON, Petitioner, v. JEFFREY A. UTTECHT, Respondent.
ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE
Before the Court, without oral argument, is Petitioner Brandon Keith Hutchinson's Motion to Dismiss Without Prejudice, ECF No. 8. Petitioner, currently housed at Coyote Ridge Corrections Center, is proceeding pro se and the $5.00 filing fee has been paid. Respondent has not been served.
On September 18, 2020, the Court directed Petitioner to amend his habeas corpus petition as it failed to clearly present the grounds for federal habeas relief, failed to show how each apparent claim for relief has been presented to the highest state court, and failed to show that the petition is not time-barred. ECF No. 5 at 2-8.
In his instant Motion, Petitioner states that he moves to dismiss this action without prejudice, "so legal counsel can effectively represent [his] contentions to the Court if deemed to have merit." ECF No. 8. Petitioner should be mindful of the one year period of limitations set forth in 28 U.S.C. § 2244(d). Failure to timely file a federal habeas petition would be cause for dismissal. Petitioner is advised that the one year limitations period is not statutorily tolled during the pendency of a federal habeas petition, see Duncan v. Walker, 533 U.S. 167 (2001), and has continued to run while the present petition has been before this Court, unless Petitioner also had properly filed postconviction proceedings pending in the state courts. See 28 U.S.C. § 2244(d)(2); see also Artuz v. Bennett, 531 U.S. 4, 5 (2000).
Accordingly, IT IS ORDERED:
1. Petitioner's Motion to Dismiss Without Prejudice, ECF No. 8, is GRANTED pursuant to Federal Rule of Civil Procedure 41(a).// // // // //
2. The Petition, ECF No. 1, is DISMISSED WITHOUT PREJUDICE.
3. The Clerk's Office is DIRECTED to enter JUDGMENT of dismissal without prejudice.
4. The Clerk's Office is DIRECTED to CLOSE the file.
5. The Court certifies that there is no basis upon which to issue a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A certificate of appealability is therefore DENIED.
IT IS SO ORDERED. The Clerk of Court is directed to enter this Order and provide a copy to pro se Petitioner.
DATED this 16th day of December 2020.
/s/_________
SALVADOR MENDOZA, JR.
United States District Judge