Lionil Fernandez v. Terri Gonzalez
Filing
38
MINUTE ORDER IN CHAMBERS by Magistrate Judge Stephen J. Hillman: As stated in the Courts April 24, 2012 Minute Order, Claim Four of the First Amended Petition was withdrawn, based on petitioners election to withdraw that claim in his Notice of Withdr awal (filed on April 18, 2012). As of todays date, petitioner has not filed a Notice of Clarification. Therefore, theCourt assumes that in his Notice of Election petitioner selected (as a backup option to Option 3) Option 2 of the Courts March 30, 2012 Minute Order.Accordingly, the Clerk is directed to enter petitioners voluntary dismissal of the Petition, pursuant to Fed. R. Civ. P. 41(a)(2). (sbu)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-8022-ODW (SH)
Title
Lionil Fernandez v. Terri Gonzalez, Warden
Present: The
Honorable
Date
May 21, 2012
Stephen J. Hillman
Sandra Butler
Deputy Clerk
Court Reporter / Recorder
Tape No.
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants:
N/A
N/A
Proceedings:
(IN CHAMBERS)
As stated in the Court’s April 24, 2012 Minute Order, Claim Four of the First
Amended Petition was withdrawn, based on petitioner’s election to withdraw that claim
in his Notice of Withdrawal (filed on April 18, 2012).
In the Court’s April 24, 2012 Minute Order, following the Court’s denial of
petitioner’s request for a “stay and abeyance” procedure (Option 3 of the Court’s March
30, 2012 Minute Order), the Court stated that it was unclear whether as a backup option
to Option 3 petitioner in his Notice of Election (filed on April 18, 2012) had selected
Option 2 of the Court’s March 30, 2012 Minute Order (namely, that since petitioner
wished to proceed with the third and fifth claims alleged in the First Amended Petition,
he was filing a notice of voluntary dismissal without prejudice of the First Amended
Petition in order to return to state court to exhaust his state remedies with respect to those
unexhausted claims).1 The Court ordered petitioner to file a Notice of Clarification by
May 7, 2012 indicating whether he had, in fact, selected (as a backup option to Option 3)
Option 2 of the Court’s March 30, 2012 Minute Order; and stated that petitioner’s failure
to submit a timely Notice of Clarification would result in the Court assuming petitioner
had selected (as a backup option to Option 3) Option 2 of the Court’s March 30, 2012
1
In the section of the March 30, 2012 Minute Order concerning Option 2, the
Court cautioned petitioner that: (1) a new federal habeas petition filed in this Court will be
subject to the one-year statute of limitations and to any applicable procedural bars; and (2)
the one-year statute of limitations is not tolled during the time that petitioner’s Petition, his
First Amended Petition, or any other federal habeas petition has been pending in this Court.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 1 of 2
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-8022-ODW (SH)
Date
Title
May 21, 2012
Lionil Fernandez v. Terri Gonzalez, Warden
Minute Order.
As of today’s date, petitioner has not filed a Notice of Clarification. Therefore, the
Court assumes that in his Notice of Election petitioner selected (as a backup option to
Option 3) Option 2 of the Court’s March 30, 2012 Minute Order.
Accordingly, the Clerk is directed to enter petitioner’s voluntary dismissal of the
Petition, pursuant to Fed. R. Civ. P. 41(a)(2).
cc:
Counsel of Record*
*the term “counsel” as used herein also includes any pro se party.
See Local Rule 2.9.3.
:
Initials of Preparer
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 2 of 2
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