Smith v. Scillia et al

Filing 38

ORDER Granting 36 Motion to Dismiss. Petition and this action are dismissed without prejudice. No certificate of appealability shall issue. Clerk shall enter judgment accordingly. Signed by Judge Philip M. Pro on 10/23/13. (Copies have been distributed pursuant to the NEF - EDS)

1
2
3
4
5

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

6
7

BRECK SMITH,

8
9
10
11

Petitioner,
vs.
D.W. NEVEN, et al.,
Respondents.

)
)
)
)
)
)
)
)
)

2:10-CV-01596-PMP-PAL
ORDER

12

This is an action initiated by Breck Smith, a state prisoner, on a petition for writ of habeas corpus

13

(ECF No. 10). Petitioner has filed an amended petition (ECF No. 19) and was granted leave to

14

consolidate another habeas petition with this one, filing a supplemental petition (ECF No. 26).

15

Respondents filed an answer (ECF No. 28) and petitioner a reply (ECF No. 34). However, prior to a

16

decision being reached on the merits of the claims, petitioner filed a motion to dismiss the petition

17

without prejudice (ECF No. 38), which respondents have not opposed. Petitioner indicates a desire to

18

pursue his claims in state court and declares his understanding of the consequences of his motion. Good

19

cause appearing, the motion (ECF No. 36) is GRANTED. The petition and this action will be

20

dismissed without prejudice. Given that this is a voluntary dismissal, the Court finds that jurists of

21

reason would not find the granting of the motion to be debatable. Therefore, no certificate of

22

appealability shall issue. The Clerk shall enter judgment accordingly.

23

IT IS SO ORDERED.

24

Dated this ___23rd___ day of October, 2013.

25
26

___________________________________
UNITED STATES DISTRICT JUDGE