(HC)Johnson v. Trate ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY JOHNSON, Case No. 1:22-cv-01281-HBK (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO CLOSE CASE 13 v. (Doc. No. 5) 14 B.M. TRATE, Warden, 15 Respondent. 16 17 18 19 Petitioner, Anthony Johnson (“Petitioner”), a federal prisoner proceeding pro se, initiated 20 this case by filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 on October 7, 21 2022.1 (Doc. No. 1, “Petition”). On December 8, 2022, Petitioner filed a motion to withdraw his 22 Petition without prejudice. (Doc. No. 5). 23 The Federal Rules of Civil Procedure may be applied to habeas proceedings to the extent 24 such rules are not inconsistent with the statutory provisions of the Habeas Rules. Rules 25 Governing Section 2254 Cases in the United States District Court, Rule 12. See also, Fed. R. 26 Civ. P. 81(a)(4). Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, “the 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 | plaintiff may dismiss an action without a court order by filing ... a notice of dismissal before the 2 || opposing party serves either an answer or a motion for summary judgment.” Fed. R. Civ. P. 3 | 41(a)(1)(A)G@). Voluntary dismissal under this rule requires no action on the part of the court and 4 | divests the court of jurisdiction upon the filing of the notice of voluntary dismissal. See United 5 | States v. 475 Martin Lane, 545 F.3d 1134, 1145 (9th Cir. 2008) (voluntary dismissal pursuant to 6 | Rule 41(a)(1)(A)Q) is self-executing and requires no further action by court). Rule 41(a)(1) has 7 | been found to apply in the habeas context where the respondent had not yet filed an answer to the 8 || petition. See Bhamani v. Apker, 2018 WL 684896, at *1 (E.D. Cal. Feb. 1, 2018) (“Rule 41(a)(1) 9 | has been found to apply in the habeas context where the respondent had not yet filed an answer to 10 | the petition.” (collecting cases)). 11 In this case, Respondent has not served either an answer or a motion for summary 12 | judgment. Thus, Petitioner’s notice of dismissal is effective upon its filing and without a court 13 | order pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)Q). 14 The Clerk of Court shall CLOSE this case to reflect Petitioner’s notice of voluntary 15 || dismissal and terminate all deadlines and motions. 16 M Dated: _ December 9, 2022 oe Zh. Sareh Zackte 18 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28