(HC) Martinez v. Allison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS MARTINEZ, Case No. 1:23-cv-00323-CDB (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO CLOSE CASE AND ADJUST THE DOCKET 13 v. TO REFLECT VOLUNTARY DISMISSAL PURSUANT TO RULE 41(a)(1)(A)(i) OF THE 14 KATHLEEN ALLISON, FEDERAL RULES OF CIVIL PROCEDURE 15 Respondent. (Doc. 6) 16 17 18 Petitioner Carlos Martinez, a state prisoner currently incarcerated at Valley State Prison in 19 Chowchilla, California, is proceeding pro se with a Petition for writ of habeas corpus under 28 20 U.S.C. § 2254, filed on February 23, 2023.1 (Doc. 1). On June 28, 2023, Petitioner filed a 21 “motion to dismiss” his own petition. 22 The Federal Rules of Civil Procedure may be applied to habeas proceedings to the extent 23 such rules are not inconsistent with the statutory provisions of the Habeas Rules. Rules 24 Governing Section 2254 Cases in the United States District Court, Rule 12. See also, Fed R. Civ. 25 P. 81(a)(4). Pursuant to Fed. R. Civ. P. Rule 41(a)(1)(A)(i), “the plaintiff may dismiss an action 26 without a court order by filing . . . a notice of dismissal before the opposing party serves either an 27 1 The Clerk of Court filed the petition on Petitioner’s behalf on March 3, 2023. Petitioner signed the filing on February 23, 2023, the date the Court presumes he delivered it for mailing, and pursuant to 1 | answer or a motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(@). Voluntary dismissal 2 | under this rule requires no action on the part of the court. See United States v. 475 Martin Lane, 3 | 545 F.3d 1134, 1145 (9th Cir. 2008) (voluntary dismissal pursuant to Rule 41(a)(1)(A)(i) is self- 4 | executing and requires no further action by court). Rule 41(a)(1) has been found to divest the 5 | court of jurisdiction upon the filing of any notice of voluntary dismissal. See Bhanami v. Apker, 6 | No. 1:17-cv-01572-DAD-JLT (HC), 2018 WL 684896, at *1 (E.D. Cal. Feb. 1, 2018). 7 In this case, Respondent has not yet answered or filed a motion for summary judgment. 8 | Thus, Petitioner’s notice of dismissal was effective upon its filing and without a court order 9 | pursuant to Federal Rule of Civil 41(a)(1)(A)Q). 10 Accordingly, the Clerk of the Court is HEREBY DIRECTED to CLOSE the file in this 11 | case and adjust the docket to reflect voluntary dismissal of this action pursuant to Rule 12 | 41(ad1y(A)qQ). 13 | IT IS SO ORDERED. Dated: _ June 30, 2023 | Wr 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28