Smith v. Williams et al

Filing 17

ORDER granting 16 Motion to Dismiss with prejudice. The court will not issue a certificate of appealability. Signed by Judge Richard F. Boulware, II on 7/13/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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TARRELL M. SMITH,

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Petitioner,

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vs.

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Case No. 2:15-cv-01762-RFB-NJK

BRIAN E. WILLIAMS, et al.,

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ORDER

Respondents.

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Petitioner has filed a motion to voluntarily dismiss petition for writ of habeas corpus (ECF No.

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16). Respondents have not responded to the motion. Petitioner understands that the dismissal would

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be without prejudice.1 Good cause appearing;

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IT IS THEREFORE ORDERED that this action is DISMISSED with prejudice. The clerk of
the court shall enter judgment accordingly and close this action.

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IT IS FURTHER ORDERED that the court will not issue a certificate of appealability.

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DATED: July 13, 2017.

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_________________________________
RICHARD F. BOULWARE, II
United States District Judge

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Technically, under Rule 41(a) of the Federal Rules of Civil Procedure, a dismissal would be without
prejudice unless the order states otherwise. However, this action itself has been open for more than a
year, and the one-year period of limitation of 28 U.S.C. § 2244(d)(1) was not tolled while the action was
open. Even if the court were to dismiss the action “without prejudice,” any subsequent petition would
be time-barred.