Cole v. United States of America

Filing 9

ORDER Construing 5 Petitioner's Motion to Withdraw Petition as Notice of Voluntary Dismissal and ORDER DISMISSING PETITION for Writ of Habeas Corpus signed by Chief Judge Lawrence J. O'Neill on 7/10/2018. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES COLE,

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No. 1:18-cv-00731-LJO-JLT (HC)
Petitioner,

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ORDER CONSTRUING PETITIONER’S
MOTION TO WITHDRAW PETITION AS
NOTICE OF VOLUNTARY DISMISSAL
(Doc. No. 5)

v.
ORDER DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS

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UNITED STATES OF AMERICA,

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Respondent.

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ORDER DIRECTING CLERK OF COURT
TO CLOSE CASE
[NO CERTIFICATE OF APPEALABILITY
IS REQUIRED]

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Petitioner is a federal prisoner proceeding in propria persona with a petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2241. On June 6, 2018, the Magistrate Judge assigned to

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the case issued Findings and Recommendation to dismiss the petition for lack of jurisdiction.

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(Doc. No. 4.) This Findings and Recommendation was served upon all parties and contained

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notice that any objections were to be filed within twenty-one days from the date of service of that

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order. On June 18, 2018, Petitioner filed a motion to withdraw the petition.
Pursuant to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure, 1 “the [petitioner] may

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Rule 12 of the Rules Governing Section 2254 Cases provides that “[t]he Federal Rules of Civil Procedure, to the
extent that they are not inconsistent with any statutory provision or these rules, may be applied to a proceeding under

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dismiss an action without a court order by filing: a notice of dismissal before the opposing party

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serves either an answer or a motion for summary judgment . . . .” The filing of a notice of voluntary

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dismissal is “effective on filing, no court order is required, the parties are left as though no action

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had been brought, and the district court lacks jurisdiction to do anything about it.” Commercial

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Space Management Co., Inc., v. Boeing Co., Inc., 193 F.3d 1074, 1078 (9th Cir. 1999). In this case,

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Petitioner is requesting the petition be withdrawn. The Court hereby CONSTRUES his motion as

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a notice of voluntary dismissal under Rule 41(a)(1). Respondent has not yet filed an answer or

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motion for summary judgment. Therefore, under Rule 41(a)(1), the petition must be dismissed.

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In the event a notice of appeal is filed, a certificate of appealability is not required because

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this is not a final order in a habeas proceeding in which the detention complained of arises out of

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process issued by a State court. Forde v. U.S. Parole Commission, 114 F.3d 878 (9th Cir. 1997);

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see Ojo v. INS, 106 F.3d 680, 681-682 (5th Cir. 1997); Bradshaw v. Story, 86 F.3d 164, 166 (10th

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Cir. 1996).

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Accordingly, the Court orders as follows:

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1.

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Petitioner’s motion to withdraw the petition is CONSTRUED as a notice of

voluntary dismissal;

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2.

The petition for writ of habeas corpus is DISMISSED;

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3.

The Clerk of Court is DIRECTED to CLOSE the case; and,

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4.

In the event a notice of appeal is filed, no certificate of appealability is required.

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This order terminates the action in its entirety.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

July 10, 2018

UNITED STATES CHIEF DISTRICT JUDGE
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these rules."

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