Cowan v. Soto

Filing 18


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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TYRONE JUSTIN COWAN, 12 Petitioner, 13 v. 14 J. SOTO, 15 No. 1:16-cv-00083-DAD-JLT ORDER DISMISSING ACTION, CLOSING CASE, AND DENYING PENDING MOTIONS AS MOOT Respondent. (Doc. Nos. 11, 13, 14) 16 Petitioner Tyrone Justin Cowan is a state prisoner proceeding in propria persona with a 17 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 20, 2016, the 19 magistrate judge assigned to the case issued findings and recommendations recommending that 20 respondent’s motion to dismiss the pending petition be granted on the grounds that petitioner had 21 failed to exhaust any of his claims by first presenting them for review by the state high court. 22 (Doc. No. 11.) These findings and recommendations were served upon all parties and contained 23 notice that any objections thereto were to be filed within twenty-one days from the date of service 24 of that order. While no party has yet filed objections to the findings and recommendation, on 25 June 22, 2016, petitioner filed a request to voluntarily dismiss the petition without prejudice, 26 presumably pursuant to Rule 41 of the Federal Rules of Civil Procedure, so that he may exhaust 27 his claims. (Doc. No. 17.) 28 ///// 1 1 A plaintiff may voluntarily dismiss a suit without a court order by filing a notice of 2 dismissal before the opposing party serves either an answer or a motion for summary judgment. 3 Fed. R. Civ. P. 41(a)(1)(A); Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997).1 4 Here, petitioner does not require a court order to dismiss this petition, as respondent has neither 5 served an answer or a motion for summary judgment on petitioner. Therefore, the request for 6 voluntary dismissal will be deemed a notice of dismissal filed in accordance with Rule 7 41(a)(1)(A) of the Federal Rules of Civil Procedure, and the matter is dismissed without 8 prejudice. All pending motions (Doc. Nos. 11, 13, 14) are denied as having been rendered moot 9 by petitioner’s voluntary dismissal of his petition, and the Clerk of Court is directed to close the 10 case. 11 IT IS SO ORDERED. 12 Dated: September 14, 2016 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, the “Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.” 2

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