(HC) Marroquin v. People of the State of California ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICOLAS ANDRES MARROQUIN, Case No. 1:21-cv-01735-JLT-HBK (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO CLOSE CASE 13 v. (Doc. No. 6) 14 M.B. ATCHLEY, 15 Respondent. 16 17 18 19 Petitioner, Nicolas Andres Marroquin (“Petitioner”), a state prisoner, is proceeding pro se 20 on his First Amended Petition for writ of habeas corpus under 28 U.S.C. § 2254.1 (Doc. No. 6, 21 “First Amended Petition”). On January 26, 2023, Respondent filed a motion to modify the 22 briefing order and accept its incorporated motion to dismiss as Respondent’s response to 23 Petitioner’s First Amended Petition, after discovering that Petitioner has not yet been resentenced 24 pursuant to the California Court of Appeal’s order reversing the substantive gang conviction and 25 remanding for resentencing. (Doc. No. 18). On February 23, 2023, the Court granted 26 Respondent’s motion to modify and ordered Petitioner to show cause why the First Amended 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 | Petition should not be dismissed as premature, or in the alternative, file a notice of voluntary 2 | dismissal. (Doc. No. 19). On March 22, 2023, Petitioner filed a notice of voluntary dismissal of 3 | his First Amended Petition without prejudice. (Doc. No. 20). 4 The Federal Rules of Civil Procedure may be applied to habeas proceedings to the extent 5 | such rules are not inconsistent with the statutory provisions of the Habeas Rules. Rules 6 | Governing Section 2254 Cases in the United States District Court, Rule 12. See also, Fed. R. 7 | Civ. P. 81(a)(4). Pursuant to Rule 41(a)({1)(A)G) of the Federal Rules of Civil Procedure, “the 8 | plaintiff may dismiss an action without a court order by filing ... a notice of dismissal before the 9 | opposing party serves either an answer or a motion for summary judgment.” Fed. R. Civ. P. 10 | 41(a)(1)(A)G). Voluntary dismissal under this rule requires no action on the part of the court and 11 | divests the court of jurisdiction upon the filing of the notice of voluntary dismissal. See United 12 | States v. 475 Martin Lane, 545 F.3d 1134, 1145 (9th Cir. 2008) (voluntary dismissal pursuant to 13 | Rule 41(a)(1)(A)Q@) is self-executing and requires no further action by court). Rule 41(a)(1) has 14 | been found to apply in the habeas context where the respondent had not yet filed an answer to the 15 | petition. See Bhamani v. Apker, 2018 WL 684896, at *1 (E.D. Cal. Feb. 1, 2018) (“Rule 41(a)(1) 16 | has been found to apply in the habeas context where the respondent had not yet filed an answer to 17 | the petition.” (collecting cases)). 18 In this case, Respondent has not served either an answer or a motion for summary 19 | judgment. Thus, Petitioner’s notice of dismissal is effective upon its filing and without a court 20 | order pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)Q). 21 The Clerk of Court shall CLOSE this case to reflect Petitioner’s notice of voluntary 22 | dismissal and terminate all deadlines and motions. *3 | Dated: _ March 23, 2023 Mihaw. Wh. foareh fackte 24 HELENA M. BARCH-KUCHTA 35 UNITED STATES MAGISTRATE JUDGE 26 27 28