(HC)Aikens v. Doerer

Opinion

1 2 3 4 5 6 7 10 11 DANIEL DEWAYNE AIKENS, Case No. 1:24-cv-01554-HBK (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO DISTRICT JUDGE AND 13 v. CLOSE CASE

14 DOERER, Warden, USP Atwater, (Doc. No. 6) 15 Respondent. 16 17 18 19 Petitioner, Daniel Dewayne Aikens (“Petitioner”), a federal prisoner proceeding pro se, 20 initiated this case by filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 on 21 December 18, 2024.1 (Doc. No. 1, “Petition”). On February 3, 2025, Petitioner filed a motion to 22 voluntarily dismiss his Petition. (Doc. No. 6). 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 yet been directed to Respond to the Petition, and 12 | therefore has not served either an answer or a motion for summary judgment. Thus, Petitioner’s 13 | notice of dismissal is effective upon its filing and without a court order pursuant to Federal Rule 14 | of Civil Procedure 41(a)(1)(A)G). The dismissal is deemed to be without prejudice because the 15 | notice does not state otherwise. Fed. R. Civ. P. 41(a)(1)(B). 16 ACCORDINGLY, it is hereby ORDERED: 17 The Clerk of Court shall assign this case to a district judge and then CLOSE this case to 18 | reflect Petitioner’s notice of voluntary dismissal and terminate all deadlines and motions. 19 | Dated: _ February 4, 2025 Mihaw. Wh. foareh Zaskth 1 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

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