Moreno v. Mendoza-Powers

Full title: RONALD MORENO, Petitioner, v. K. MENDOZA-POWERS, Respondent

Court: United States District Court, E.D. California

Date published: Aug 7, 2007

1:06-cv-01249-LJO-TAG HC (E.D. Cal. Aug. 7, 2007)

Opinion

1:06-cv-01249-LJO-TAG HC.

August 7, 2007

ORDER GRANTING PETITIONER'S MOTION FOR VOLUNTARY DISMISSAL (Doc. 9) ORDER DENYING AS MOOT RESPONDENT'S MOTION TO DISMISS (Doc. 8) ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1)

LAWRENCE O'NEILL, Magistrate Judge

Petitioner is a prisoner proceeding with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.

On September 12, 2006, Petitioner filed the instant petition. (Doc. 1). On March 1, 2007, the Court ordered Respondent to file a response. (Doc. 6). On April 30, 2007, Respondent filed a motion to dismiss in lieu of a response. (Doc. 8). Respondent contended that the petition raises claims over which the Court lacks jurisdiction, and also notes that Petitioner has another petition pending in case no. 1:06-cv-01241-LJO-SMS, which raises the same issue regarding the 2004 review of parole. (Id.). On June 1, 2007, Petitioner filed the instant motion to voluntary dismiss his petition. (Doc. 9). In that motion, Petitioner acknowledges that he has another petition, case no. 1:06-cv-01241-LJO-SMS, raising substantially the same issues, that is already pending in this Court. (Id.).

DISCUSSION

Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, a petitioner's request for dismissal may be granted by order fo the Court. A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant "can show that it will suffer some plain legal prejudice as a result."Smith v. Lenches, 263 F.3d 972, 976 (9^th Cir. 2001). Here, Petitioner has indicated that the petition pending in case no. 1:06-cv-01241-LJO-SMS raises the same issues as the instant petition; thus, the Court perceives no "plain legal prejudice" to Petitioner upon granting his motion for voluntary dismissal. Additionally, it does not appear that Respondent would suffer any prejudice as a result of dismissal since Respondent has already moved for dismissal of the petition in part due to the pendency of case no. 1:06-cv-01241-LJO-SMS.

ORDER

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's motion to dismiss (Doc. 9), is GRANTED;

2. Respondent's motion to dismiss (Doc. 8), is DENIED as MOOT;

3. The petition for writ of habeas corpus (Doc. 1), is DISMISSED; and

4. This Court's clerk close this action.

IT IS SO ORDERED.