Howard v. On Habeas Corpus

Filing 6

ORDER GRANTING Petitioner's 4 Motion for Voluntary Dismissal of the Petition; ORDER DENYING Petitioner's 4 Request for Return of Documents; ORDER DISMISSING the 1 Petition without Prejudice and DIRECTING the Clerk to CLOSE the Action signed by District Judge Anthony W. Ishii on 3/14/2013. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TIMOTHY HOWARD,
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Petitioner,
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v.
ON HABEAS CORPUS,

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Respondent.

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1:13-cv—00206-AWI-SKO-HC
ORDER GRANTING PETITIONER’S
MOTION FOR VOLUNTARY DISMISSAL OF
THE PETITION (DOC. 4)
ORDER DENYING PETITIONER’S
REQUEST FOR RETURN OF DOCUMENTS
(DOC. 4)
ORDER DISMISSING THE PETITION
WITHOUT PREJUDICE (DOC. 1)
AND DIRECTING THE CLERK TO
CLOSE THE ACTION

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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2254.

Pending before the Court is the

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Petitioner’s request to “rescind” his petition, which is
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understood by the Court to be a motion for voluntary dismissal of
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the action.

The request was filed on February 21, 2013; the

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petition was filed on February 8, 2013.
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The named respondent has not appeared in the action.
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Petitioner filed the instant motion for dismissal of the petition
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on the ground that the petition was filed in this Court by
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mistake.
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Subject to other provisions of law, a Petitioner may

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voluntarily dismiss an action without leave of court before

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service by the adverse party of an answer or motion for summary

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judgment.

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be dismissed except upon order of the court and upon such terms

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and conditions as the court deems proper.

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Fed. R. Civ. P. 41(a).

Otherwise, an action shall not

Id.

Here, no answer or motion for summary judgment has been
served or filed.

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Thus, Petitioner is entitled to dismissal.

The dismissal of the petition will be denominated as a

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dismissal without prejudice.

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that there is a one-year limitations period in which a federal

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petition for writ of habeas corpus must be filed.

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§ 2244(d)(1).

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at the conclusion of direct review.

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is tolled while a properly filed request for collateral review is

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pending in state court.

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183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 120 S.Ct. 1846

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(2000).

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time such an application is pending in federal court.

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Walker, 121 S.Ct. 2120, 2129 (2001).

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However, Petitioner is forewarned

28 U.S.C.

In most cases, the one-year period begins to run
Id.

The limitations period

28 U.S.C. § 2244(d)(2); Nino v. Galaza,

However, the limitations period is not tolled for the
Duncan v.

Further, Petitioner has requested that the Court number and

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return all documents filed in the action.

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will retain the documents as its record of the action.

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Clerk’s office does not provide free copies of documents to

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parties.

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1)

The

Accordingly, it is ORDERED that:

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However, the Court

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Petitioner’s motion for voluntary dismissal is GRANTED;

and
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Petitioner’s request for return of documents is DENIED;

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The petition for writ of habeas corpus is DISMISSED

and

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without prejudice; and

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4)

The Clerk is DIRECTED to close this action because this

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order terminates the proceeding in its entirety.

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IT IS SO ORDERED.

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Dated:
9h0d30

March 14, 2013
SENIOR DISTRICT JUDGE

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