(HC) Richson v. Clark ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SEAN JEFFREY RICHSON, ) Case No.: 1:20-cv-01502-DAD-JLT (HC) ) 12 Petitioner, ) FINDINGS AND RECOMMENDATION TO ) DISMISS PETITION WITHOUT PREJUDICE 13 v. ) ) [10-DAY OBJECTION DEADLINE] 14 K. CLARK, Warden, ) 15 Respondent. ) ) 16 ) 17 On October 20, 2020, Petitioner filed a petition for writ of habeas corpus in the United States 18 District Court for the Central District of California. (Doc. 1.) The Central District transferred the case 19 to this Court on October 23, 2020. (Doc. 3.) Petitioner filed a first amended petition on December 9, 20 2020 (Doc. 9) and filed a second amended petition on March 1, 2021 (Doc. 13). The Respondent filed 21 a motion to dismiss the action as untimely and for failure to state a cognizable federal claim. (Doc. 22 19.) On June 10, 2021, the Court issued findings and recommendations to grant the motion to dismiss. 23 (Doc. 22.) 24 On June 11, 2021, Petitioner filed a motion to withdraw the petition. (Doc. 23.) Accordingly, 25 the Court will construe Petitioner’s motion as a request for voluntary dismissal. Respondent has not 26 yet filed an answer to the petition. 27 Pursuant to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure, “the [petitioner] may 28 dismiss an action without a court order by filing: a notice of dismissal before the opposing party serves 1 either an answer or a motion for summary judgment . . . .” Pursuant to Rule 12 of the Rules 2 Governing Section 2254 Cases, “[t]he Federal Rules of Civil Procedure, to the extent that they are not 3 inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these 4 rules.” Therefore, under Rule 41(a)(1), the petition must be dismissed without prejudice. The Court 5 expresses no opinion with respect to the timeliness of the instant petition or any future petition. 6 Nevertheless, Petitioner is advised that there is a one-year statute of limitations period governing the 7 filing of federal habeas petitions which commences upon the conclusion of direct review. 28 U.S.C. § 8 2244(d). The statute may be tolled while Petitioner seeks relief in the state courts, see 28 U.S.C. § 9 2244(d)(2), but it is not tolled for the time a habeas petition is pending in federal court. Duncan v. 10 Walker, 533 U.S. 167, 181-82 (2001). 11 RECOMMENDATION 12 For the foregoing reasons, the Court RECOMMENDS that the petition be dismissed without 13 prejudice. 14 This Findings and Recommendation is submitted to the United States District Court Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 16 Rules of Practice for the United States District Court, Eastern District of California. Within ten days 17 after being served with a copy of this Findings and Recommendation, Petitioner may file written 18 objections with the Court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendation.” The Court will then review the 20 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to 21 file objections within the specified time may waive the right to appeal the Order of the District Court. 22 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 IT IS SO ORDERED. 25 Dated: June 16, 2021 _ /s/ Jennifer L. Thurston 26 CHIEF UNITED STATES MAGISTRATE JUDGE 27 28