Nelson v. Van Hook

Filing 11

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

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ZACHARY NELSON,

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Petitioner,

ORDER

v.

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CASE NO. C17-0780-JCC

WILLIAM VAN HOOK,

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Respondent.

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This matter comes before the Court on the Report and Recommendation (Dkt. No. 9) of

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the Honorable Brian A. Tsuchida, United States Magistrate Judge, and Petitioner Zachary

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Nelson’s motion to dismiss his writ of habeas corpus (Dkt. No. 10). Having thoroughly

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considered the parties’ briefing and the relevant record, the Court finds oral argument

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unnecessary and hereby GRANTS Petitioner’s motion and DISMISSES the Report and

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Recommendation as moot for the reasons explained herein.

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On June 21, 2017, Judge Tsuchida granted Petitioner leave to amend his habeas corpus

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petition. (Dkt. No. 8.) Judge Tsuchida enumerated the petition’s various deficiencies, including

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Petitioner’s failure to exhaust his state court remedies and failure to demonstrate cause and actual

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prejudice for his procedurally defaulted claims. (Id. at 2–4.) Petitioner’s amendment was due by

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July 21, 2017. (Id. at 4.)

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On July 24, 2017, Judge Tsuchida issued a Report and Recommendation, recommending

ORDER
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that this Court dismiss Petitioner’s claims without prejudice and noting Petitioner’s failure to

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amend his petition. (See Dkt. No. 9.) However, Petitioner responded on July 21, 2017, but the

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document was not posted on the docket until July 25, 2017. (See Dkt. No. 10.) Petitioner asks

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that the Court dismiss his petition without prejudice so he can cure his deficiencies noted by

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Judge Tsuchida. (Id.)

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The Court agrees with Judge Tsuchida’s assessment of the procedural deficiencies and

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concludes that Petitioner’s habeas petition should be DISMISSED without prejudice. Given that

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both motions ask for the same relief, the Court GRANTS Petitioner’s motion to dismiss his

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habeas petition (Dkt. No. 10) and DISMISSES the Report and Recommendation (Dkt. No. 9) as

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moot. The Court DIRECTS the Clerk to CLOSE this case and to send a copy of this order to the

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parties and Judge Tsuchida.

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DATED this 2nd day of August 2017.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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