Kendricks v. People of the State of Californa

Filing 12

FINDINGS And RECOMMENDATIONS To Grant Petitioner's Motion To Dismiss Petition For Writ Of Habeas Corpus (Doc. 11 ), ORDER Requiring Objections To Be Filed Within Twenty-One Days, ORDER Directing Clerk Of Court To Assign District Jduge To Case, signed by Magistrate Judge Jennifer L. Thurston on 4/17/215. This case has been assigned to U.S. District Judge Lawrence J. O'Neill and U.S. Magistrate Judge Jennifer L. Thurston; the new case number is 1:14-cv-1374-LJO-JLT(HC). F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 5/12/2015. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Petitioner,
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v.
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PEOPLE OF THE STATE OF CALIFORNIA, )
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Respondent.
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TORRANCE KENDRICKS,

Case No.: 1:14-cv-01374-JLT
FINDINGS AND RECOMMENDATIONS TO
GRANT PETITIONER’S MOTION TO DISMISS
PETITION FOR WRIT OF HABEAS CORPUS
(Doc. 11)
ORDER REQUIRING OBJECTIONS TO BE
FILED WITHIN TWENTY-ONE DAYS
ORDER DIRECTING CLERK OF COURT TO
ASSIGN DISTRICT JUDGE TO CASE

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Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
PROCEDURAL HISTORY
The instant petition was filed on August 27, 2014. (Doc. 1). On February 13, 2015, Petitioner

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filed the instant motion to dismiss the petition, indicating that he had filed a similar petition in this

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Court in case no. 1:14-cv-01496-GSA and had dismissed that petition due to its lack of exhaustion.

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(Doc. 11, p. 2). The Court dismissed that petition on November 18, 2014. Petitioner had believed that

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this petition would also be dismissed for the same reason. (Id.).

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DISCUSSION
Subject to other provisions of law, a petitioner may voluntarily dismiss an action without leave
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of court before service by the adverse party of an answer or motion for summary judgment. Fed. R.

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Civ. P. 41(a). Otherwise, an action shall not be dismissed except upon order of the Court and upon

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such terms and conditions as the court deems proper. Id. Here, no answer has been served or filed.

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Accordingly, Petitioner is entitled to dismiss the petition without leave of Court. Id. Moreover, the

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Court notes that the instant petition appears to be the result of a miscommunication between Petitioner

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and the Court in which the Clerk of the Court filed two petitions that were intended to be a single

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petition, thus generating confusion over the dismissal of one petition and the non-dismissal of the

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instant petition.
ORDER

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For the foregoing reasons, the Court HEREBY DIRECTS the Clerk of the Court to assign a
United States District Judge to this case.
RECOMMENDATION

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Accordingly, the Court RECOMMENDS that Petitioner’s Motion to Dismiss (Doc. 11), be
GRANTED;
This Findings and Recommendations is submitted to the United States District Judge assigned

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to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of

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Practice for the United States District Court, Eastern District of California. Within 21 days after being

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

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

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Recommendations.” Replies to the objections shall be served and filed within 10 days after service of

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the objections. The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

April 17, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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