Young v. Montgomery

Filing 17

ORDER 16 . (Illston, Susan) (Filed on 9/30/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRIAN K. YOUNG,

Case No. 15-cv-04780-SI

Plaintiff,
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v.

ORDER

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W. L. MONTGOMERY,

Re: Dkt. No. 16

Defendant.

United States District Court
Northern District of California

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Brian Young filed this pro se action seeking a writ of habeas corpus under 28 U.S.C.

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§ 2254. The court issued an order to show cause why relief should not be granted on the five

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claims for relief in the petition. Respondent filed an answer on July 21, 2016.

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thereafter sought and obtained two extensions of the deadline to file his traverse; the current

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deadline for the traverse is November 18, 2016.

Petitioner

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Young has filed a request “to withdraw the petition of habeas corpus” because he is “filing

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a first amended petition to answer the attorney general answer to order to show cause.” Docket

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No. 16 at 1 (errors in source). Many of the other statements in the request do not make sense,

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leaving the court uncertain as to what Young actually wants. The court therefore will address the

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three most likely possibilities, i.e., Young wants an extension of the traverse deadline, wants to

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amend, or wants to dismiss the action.

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First, the deadline for Young to file his traverse is currently set for November 18, 2016,

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and will not be further extended. This deadline allows ample time for a diligent petitioner to

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prepare a traverse.

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Second, if Young wants to file an amended petition, he must file a motion to amend, and

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attach to that motion a copy of his amended petition asserting all his claims. Young should act

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diligently to file such an amended petition because this action will be deemed submitted and ready

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for decision when the traverse deadline arrives.

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Third, if Young wants to dismiss the petition, he must file a document that clearly requests

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a voluntary dismissal of his petition for writ of habeas corpus. (For example, he could file a one-

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page signed notice that states: “I request that my petition for writ of habeas corpus be dismissed.”)

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In deciding whether to request a voluntary dismissal, Young should bear in mind that there is a

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one-year statute of limitations for federal habeas actions, 28 U.S.C. § 2244(d), that might make a

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later-filed petition for writ of habeas corpus untimely. The court is not saying that the statute of

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limitations will bar a later action, but only that the possibility is something a petitioner should take

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into account before voluntarily dismissing his current petition.

United States District Court
Northern District of California

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For the foregoing reasons, the request to withdraw is DENIED. (Docket No. 16.)

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IT IS SO ORDERED.

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Dated: September 30, 2016
______________________________________
SUSAN ILLSTON
United States District Judge

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