Mesha Arshaz Dean v. D. K. Johnson

Filing 26

MEMORANDUM AND ORDER DISMISSING PETITION WITHOUT PREJUDICE by Judge Beverly Reid O'Connell. IT IS THEREFORE ORDERED that Petitioner's "Answer to the Petition, Consent to Dismissal of this Action (28 U.S.C. § 636) Without Prejudice" is GRANTED and that Judgment be entered denying the Petition and dismissing this action without prejudice. Case Terminated. Made JS-6. (es)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MESHA ARSHAZ DEAN,
Petitioner,

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Case No. CV 15-02971 BRO (RAO)

v.

MEMORANDUM AND ORDER
DISMISSING PETITION WITHOUT
PREJUDICE

D.K. JOHNSON,
Respondent.

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I.

INTRODUCTION

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On April 22, 2015, Petitioner Mesha Arshaz Dean (“Petitioner”), a California

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state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a

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Person in State Custody. (ECF No. 1.)

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On February 2, 2016, the Magistrate Judge issued a Report and

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Recommendation, recommending that Respondent’s Motion to Dismiss the Petition

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be granted and Petitioner’s request for a Rhines stay be denied. (ECF No. 23.) On

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March 1, 2016, the Court accepted the Report and Recommendation and ordered

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Petitioner to either: (a) elect to proceed on her exhausted claims by filing a “Notice

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of Petitioner’s Election to Proceed on only her Exhausted Claims and Consent to

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Striking Unexhausted Claims;” or (b) elect to return to state court to exhaust her

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unexhausted claims by filing a consent to dismissal of this action without prejudice.

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(ECF No. 24.)

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On March 21, 2016, Petitioner responded to the Court’s Order by filing an

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“Answer to the Petition, Consent to Dismissal of this Action (28 U.S.C. § 636)

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Without Prejudice.” (ECF No. 25.) In her response, Petitioner states that she

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“elects option (b), to exhaust her claims in state court at this time.” (Id.) The Court

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construes Petitioner’s response as a request to voluntarily dismiss this action

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pursuant to Federal Rule of Civil Procedure 41(a).
II.

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DISCUSSION

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Federal Rule of Civil Procedure 41(a)(1) provides that a plaintiff (or

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petitioner) may dismiss an action voluntarily, without court order, by filing a notice

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of dismissal before the opposing party serves either an answer or a motion for

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summary judgment. Otherwise, an action may not be dismissed except upon a

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court order, on terms that the court considers proper. Fed. R. Civ. P. 41(a)(2).

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Here, Respondent has not filed or served any answer or a motion for

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summary judgment.

Therefore, under Rule 41(a)(1), Petitioner is entitled to

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dismissal of her action without prejudice and no action is required on the part of the

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Court. See Duke Energy Trading & Mktg., L.L.C. v. Davis, 267 F.3d 1042, 1049

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(9th Cir. 2001) (once a plaintiff files a notice of dismissal pursuant to Rule

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41(a)(1)(i), “the district court loses jurisdiction over the dismissed claims and may

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not address the merits of such claims or issue further orders pertaining to them”);

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see also Perez v. Perez, Case No. 14-CV-8168-DSF, 2015 WL 1275320, at *1 n.2

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(C.D. Cal. Mar. 16, 2015) (finding that Federal Rule of Civil Procedure 41 is

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applicable in habeas actions).

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Petitioner is advised that there is a one-year statute of limitation in which a

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federal petition for writ of habeas corpus must be filed. 28 U.S.C. § 2244(d)(1).

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The limitations period is tolled while a “properly filed” application for state post-

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conviction or other collateral review is pending. 28 U.S.C. § 2244(d)(2). However,

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the limitations period is not tolled under Section 2244(d) while a petition is pending
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in federal court. Duncan v. Walker, 533 U.S. 167, 181-82, 121 S. Ct. 2120, 150

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L. Ed. 2d 251 (2001).
III.

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ORDER

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IT IS THEREFORE ORDERED that Petitioner’s “Answer to the Petition,

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Consent to Dismissal of this Action (28 U.S.C. § 636) Without Prejudice” is

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GRANTED and that Judgment be entered denying the Petition and dismissing this

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action without prejudice.

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IT IS HEREBY ORDERED
Dated: March 23, 2016
HONORABLE BEVERLY REID O'CONNELL
UNITED STATES DISTRICT COURT JUDGE

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Presented by:

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______________________________
ROZELLA A. OLIVER
UNITED STATES MAGISTRATE JUDGE

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