Sherwood v. Gonzalez

Full title: ROBIN LEE SHERWOOD, Petitioner, v. FERNANDO GONZALEZ, Respondent

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

Date published: Oct 10, 2008

1:08-cv-00554-AWI-TAG HC (E.D. Cal. Oct. 10, 2008)

Opinion

1:08-cv-00554-AWI-TAG HC.

October 10, 2008

ORDER GRANTING PETITIONER'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (Doc. 12) ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DENYING AS MOOT PETITIONER'S MOTION FOR RECONSIDERATION OF DENIAL OF APPOINTMENT OF COUNSEL (Doc. 9)

ANTHONY ISHII, District Judge

Petitioner is a state prisoner proceeding pro se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On May 8, 2008, and again on May 15, 2008, Petitioner filed motions for appointment of counsel (Docs. 5 7), both of which the Court denied on May 16, 2008. (Doc. 8). On June 23, 2008, Petitioner filed a motion for reconsideration of the order denying appointment of counsel. (Doc. 9).

On June 30, 2008, following the Court's preliminary review of the Petition, the Magistrate Judge assigned to the case issued an Order to Show Cause why the petition should not be dismissed as containing only unexhausted claims. (Doc. 10). On July 18, 2008, Petitioner filed his response. (Doc. 11). However, on October 1, 2008, before the Court had reviewed Petitioner's response, Petitioner filed a motion to voluntarily dismiss his petition in order to exhaust his remedies in state court. (Doc. 12). In that motion, Petitioner acknowledged that he had erroneously filed his claims in federal court because he had been supplied the wrong forms. (Id.).

Subject to other provisions of law, 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. Id. Here, no responsive pleading has been served or filed; indeed, Respondent has yet to enter an appearance in this case.

Accordingly, IT IS ORDERED as follows:

1. Petitioner's motion for voluntary dismissal (Doc. 12), is GRANTED;

2. The petition for writ of habeas corpus (Doc. 1), is DISMISSED without prejudice;

3. The Clerk of the Court is DIRECTED to close this action because this order terminates the proceedings in its entirety; and,

4. Petitioner's pending motion for reconsideration of the Court's order denying his motion for appointment of counsel (Doc. 9), is DENIED as MOOT.

IT IS SO ORDERED.