Patterson v. Sherman

Filing 29

ORDER Denying Petitioner's Motion To Voluntarily Dismiss Petition (Doc. 28 ), signed by Magistrate Judge Michael J. Seng on 9/15/2015. (Fahrney, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:15-cv-00053 LJO MJS (HC)
VESTER LEE PATTERSON,

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ORDER DENYING PETITIONER’S MOTION
Petitioner, TO VOLUNTARILY DISMISS PETITION
[Doc. 28]

v.

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STU SHERMAN, Warden,
Respondent.

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

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corpus pursuant to 28 U.S.C. § 2254. On August 13, 2015, Petitioner filed a motion to

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dismiss the action without prejudice. (Mot., ECF No. 28.)

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Under Fed. Rule of Civ. Proc. 41(a)(2), Petitioner may voluntarily dismiss the

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action if approved by the Court. (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

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any statutory provisions or these rules, may be applied to a proceeding under these

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rules.”)

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On March 16, 2015, Respondent filed a motion to dismiss the petition as untimely,

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and on April 29, 2015 the Magistrate Judge issued findings and recommended that the

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motion be granted and the matter be dismissed. (See ECF No. 13, 20.) Significant effort
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has been spent by the responding party and the Court to resolve the present action.

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Furthermore, Petitioner's dismissal of this action, even if granted, would not improve his

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ability to overcome the timeliness bar which led to dismissal. The interests of justice

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dictate that the motion to voluntarily dismiss the petition be DENIED.

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IT IS SO ORDERED.
Dated:

September 15, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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