Nelson v. Van Hook
ORDER signed by U.S. District Judge John C Coughenour. The Court GRANTS Petitioner's motion to dismiss (Dkt. No. 10) and DISMISSES the Report and Recommendation (Dkt. No. 9) as moot. (cc: petitioner)(ST)
THE HONORABLE JOHN C. COUGHENOUR
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
CASE NO. C17-0780-JCC
WILLIAM VAN HOOK,
This matter comes before the Court on the Report and Recommendation (Dkt. No. 9) of
the Honorable Brian A. Tsuchida, United States Magistrate Judge, and Petitioner Zachary
Nelson’s motion to dismiss his writ of habeas corpus (Dkt. No. 10). Having thoroughly
considered the parties’ briefing and the relevant record, the Court finds oral argument
unnecessary and hereby GRANTS Petitioner’s motion and DISMISSES the Report and
Recommendation as moot for the reasons explained herein.
On June 21, 2017, Judge Tsuchida granted Petitioner leave to amend his habeas corpus
petition. (Dkt. No. 8.) Judge Tsuchida enumerated the petition’s various deficiencies, including
Petitioner’s failure to exhaust his state court remedies and failure to demonstrate cause and actual
prejudice for his procedurally defaulted claims. (Id. at 2–4.) Petitioner’s amendment was due by
July 21, 2017. (Id. at 4.)
On July 24, 2017, Judge Tsuchida issued a Report and Recommendation, recommending
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that this Court dismiss Petitioner’s claims without prejudice and noting Petitioner’s failure to
amend his petition. (See Dkt. No. 9.) However, Petitioner responded on July 21, 2017, but the
document was not posted on the docket until July 25, 2017. (See Dkt. No. 10.) Petitioner asks
that the Court dismiss his petition without prejudice so he can cure his deficiencies noted by
Judge Tsuchida. (Id.)
The Court agrees with Judge Tsuchida’s assessment of the procedural deficiencies and
concludes that Petitioner’s habeas petition should be DISMISSED without prejudice. Given that
both motions ask for the same relief, the Court GRANTS Petitioner’s motion to dismiss his
habeas petition (Dkt. No. 10) and DISMISSES the Report and Recommendation (Dkt. No. 9) as
moot. The Court DIRECTS the Clerk to CLOSE this case and to send a copy of this order to the
parties and Judge Tsuchida.
DATED this 2nd day of August 2017.
John C. Coughenour
UNITED STATES DISTRICT JUDGE
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