Whitaker v. Virga

Filing 10

FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Writ of Habeas Corpus without Prejudice; ORDER for Clerk of Court to File a Copy of this Order and Petitioner's 9 Response filed January 18, 2012 as Exhibits in Case No. 1:11-cv-1252-LJO-JLT signed by Magistrate Judge Michael J. Seng on 1/21/2012. Referred to Judge Anthony W. Ishii. Objections to F&R due by 2/27/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARCUS WHITAKER,

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Petitioner,
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v.
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TIM VIRGA, Warden,
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Respondent.
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________________________________)

1:11-cv-01680 AWI MJS HC
FINDINGS AND RECOMMENDATION TO
DISMISS PETITION FOR WRIT OF
HABEAS CORPUS WITHOUT
PREJUDICE
(Doc. 1)

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254.

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I.

DISCUSSION

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A.

Procedural History

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On July 29, 2011, Petitioner filed a petition for writ of habeas corpus in this court. See

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Whitaker v. Virga, Case No. 1:11-cv-01252-LJO -JLT (E.D. Cal., 2011)1. Concurrently with the

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petition, Petitioner filed a motion to stay the proceedings while he attempted to exhaust his

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state remedies with respect to claims of ineffective assistance of counsel. On September 30,

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2011, the Court granted Petitioner’s motion to stay the proceeding, and held the petition in

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abeyance while Petitioner attempted to exhaust his state remedies.

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A court m ay take judicial notice of court records. See Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994);
MGIC Indem . Co. v. W eism an, 803 F.2d 500, 504 (9th Cir. 1986).

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On October 5, 2011, Petitioner filed in this Court the present petition challenging his

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conviction for murder, robbery and related charges by the Merced County Superior Court.

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(Pet., ECF No. 1.) Attached to it is a declaration requesting this Court stay the original habeas

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petition while Petioner continues to pursue state court remedies. The Petition appears to be

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a copy of a state habeas corpus petition filed with the Merced County Superior Court. The

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Court required Petitioner to.

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It appears that the present filing of a copy of Petitioner’s state court petition may be

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Petitioner’s response to the Court’s directive in Case No. 1:11-cv-01252-LJO -JLT that he file

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status reports regarding his state filings.

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The Court screened the petition, and on December 5, 2011, issued an order to show

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cause. (Order, ECF No. 8). In the order, the Court informed Petitioner that he could voluntarily

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withdraw the more recent petition if it was intended only as a status report in the original

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action. However, if and to the extent Petitioner’s wanted to continue to prosecute the recent

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petition, the Court ordered him to show cause why it should not be dismissed for failure to

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exhaust or for filing a second or successive petition.

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The Court ordered Petitioner to respond to the order to show cause within thirty (30)

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days of service of the order. On January 18, 2012, Petitioner filed a response to the order to

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show cause. (Resp., ECF No. 9.) From the response, it is clear that Petitioner did not intend

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to initiate a second federal habeas corpus petition, but instead was attempting to provide

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notice to this Court regarding his state filings.

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B.

Voluntary Withdrawal of a Petition

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The federal courts have a duty to construe pro se pleadings liberally. Hamilton v. United

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States, 67 F.3d 761, 764 (9th Cir.1995) (citing Hughes v. Rowe, 449 U.S. 5, 9 (1980)

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(quotation omitted)). Consistent with such duty, the Court will construe Petitioner's January 18,

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2012, response as a motion pursuant to Federal Rule of Civil Procedure 41(a)(1) to voluntarily

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dismiss the action without prejudice. (See Rule 12, Rules Governing Section 2254 Cases,

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“The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any

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statutory provisions or these rules, may be applied to a proceeding under these rules.”) It is

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clear that Petitioner filings in the present case were intended to be filed in Case No.

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1:11-cv-01252-LJO-JLT. The Court hereby recommends that the present

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dismissed without prejudice. Petitioner’s first filed action, Case No. 1:11-cv-01252-LJO -JLT,

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shall not be affected by the dismissal of this case. All future status reports should be filed in

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that matter. The Court shall also direct the Clerk of Court to file Petitioner’s January 18, 2011

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response in Case No. 1:11-cv-01252-LJO -JLT.

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II.

ORDER AND RECOMMENDATION
Accordingly, the Court hereby recommends that the petition is DISMISSED without

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petition be

prejudice.

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Furthermore, the Court ORDERS the Clerk of Court to file a copy of this order and

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Petitioner’s response filed on January 18, 2012 as exhibits in Case No. 1:11-cv-01252-LJO

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-JLT.

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This Findings and Recommendation is submitted to the assigned United States District

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Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California.

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Within thirty (30) days after the date of service of this Findings and Recommendation, any

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party may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” Replies to the Objections shall be served and filed within fourteen (14)

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days after service of the Objections. The Finding and Recommendation will then be submitted

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to the District Court for review of the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636

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(b)(1)(c). The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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IT IS SO ORDERED.

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Dated:
ci4d6

January 21, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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