Opinion
No. CIV S-08-2282 FCD EFB P.
March 15, 2010
ORDER
Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On December 18, 2009, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty-one days. Petitioner has filed objections to the findings and recommendations, and respondent has filed a response.
In his response, respondent argues that the magistrate judge erroneously found the motion to dismiss untimely in footnote one of the findings and recommendations. The magistrate judge concluded that the motion was only one day late and rejected petitioner's argument that it be denied on that grounds. Although the magistrate judge addressed the motion on its merits, respondent's objection point out that with the exclusion of the weekend, the motion was timely filed. Respondent is correct that, considering the three-day extension provided by Federal Rule of Civil Procedure 6(d), the motion was timely filed. However, it makes no difference as the magistrate considered and addressed the motion on its merits, recommending that it be granted.
In his objections, petitioner asks the Court to proceed on the merits of his claim despite the magistrate judge's conclusion that petitioner failed to state a federal claim for relief. However, due to the vague nature of petitioner's allegations, the Court is unable to evaluate the merits, as the magistrate judge determined. Findings Recommendations at 3 ("Without knowing what federal right is being asserted, respondent cannot defend against the claim, and the Court cannot evaluate the merits of the claim."). Petitioner asks that, if the Court will not determine his claim on the merits, he be allowed to withdraw his petition. The Court construes petitioner's request as a notice of dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Fed.R.Civ.P. 41(a)(1)(A)(i); Rule 12, Rules Governing § 2254 Proceedings. As no answer or motion for summary judgment has been filed, the Court will grant petitioner's request and order that the petition be dismissed without prejudice. Respondent's June 16, 2009 motion to dismiss is therefore moot.
Accordingly, IT IS HEREBY ORDERED that petitioner's request that he be allowed to withdraw his petition is construed as a notice of dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), and the petition is dismissed without prejudice. The Clerk of the Court is therefore directed to enter petitioner's dismissal without prejudice.