Gomez v. Allison
Filing
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ORDER DENYING Petitioner's 13 Request for the Appointment of Counsel; ORDER GRANTING Petitioner's 13 Motion for Voluntary Dismissal of the Petition; ORDER DISMISSING the 1 Petition without Prejudice and DIRECTING the Clerk to CLOSE the Action signed by District Judge Lawrence J. O'Neill on 11/10/2011. CASE CLOSED. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TRINIDAD GOMEZ,
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Petitioner,
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v.
K. ALLISON, Warden,
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Respondent.
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1:11-cv—01161-LJO-SKO-HC
ORDER DENYING PETITIONER’S
REQUEST FOR THE APPOINTMENT OF
COUNSEL (DOC. 13)
ORDER GRANTING PETITIONER’S
MOTION FOR VOLUNTARY DISMISSAL OF
THE PETITION (DOC. 13)
ORDER DISMISSING THE PETITION
WITHOUT PREJUDICE (DOC. 1)
AND DIRECTING THE CLERK TO
CLOSE THE ACTION
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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2254.
The matter has been referred to the
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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local
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Rules 302 and 304.
Pending before the Court is Petitioner’s
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motion to dismiss the petition without prejudice, which was filed
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on September 20, 2011.
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I.
Background
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On September 7, 2011, in response to the Court’s order to
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respond to the petition, Respondent filed a motion to dismiss the
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petition because of Petitioner’s failure to exhaust
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administrative remedies and failure to state a claim cognizable
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in a proceeding pursuant to 28 U.S.C. § 2254.
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filed the instant motion for dismissal of the petition on the
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ground that Petitioner was unable to continue to litigate or
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argue this case. (Doc. 13, 1.)
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electronically on Respondent on September 20, 2011.
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has not responded to Petitioner’s request to dismiss the
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Petitioner then
Petitioner’s motion was served
Respondent
petition.
In his request to dismiss the petition, Petitioner declares
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under penalty of perjury that he is being treated for major
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depression and bipolar disorder, is experiencing overwhelming
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stress, and cannot continue to litigate or argue his case.
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states that he is in need of a professional attorney but cannot
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afford to hire one at this time.
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Respondent be informed of his request to dismiss the petition.
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(Doc. 13, 1.)
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II.
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Although Petitioner does not expressly request counsel, it
He
Petitioner requests that the
Request for Counsel
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is possible that Petitioner is requesting the Court to appoint
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counsel to represent him in this action.
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There currently exists no absolute right to appointment of
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counsel in habeas proceedings.
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F.2d 479, 481 (9th Cir.), cert. denied, 358 U.S. 889 (1958);
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Mitchell v. Wyrick, 727 F.2d 773 (8th Cir.), cert. denied, 469
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U.S. 823 (1984).
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See e.g., Anderson v. Heinze, 258
A Magistrate Judge may appoint counsel at any stage of a
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habeas corpus proceeding if the interests of justice require it.
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18 U.S.C. § 3006A; Rule 8(c) of the Rules Governing Section 2254
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Cases.
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petitioner’s success on the merits and the ability of a
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petitioner to articulate his claims pro se in light of the
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complexity of the of the legal issues involved.
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Look, 718 F.2d 952, 954 (9th Cir. 1983).
A district court evaluates the likelihood of a
Weygandt v.
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Here, Petitioner’s claim or claims are not complex.
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appears that Petitioner has failed to exhaust his state court
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and/or administrative remedies.
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does not find that the interests of justice require the
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It
appointment of counsel at the present time.
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In the present case, the Court
Accordingly, Petitioner’s motion for appointment of counsel
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will be denied.
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III.
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Subject to other provisions of law, a Petitioner may
Voluntary Dismissal of the Petition
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voluntarily dismiss an action without leave of court before
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service by the adverse party of an answer or motion for summary
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judgment.
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be dismissed except upon order of the court and upon such terms
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and conditions as the court deems proper.
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Fed. R. Civ. P. 41(a).
Otherwise, an action shall not
Id.
Here, no answer or motion for summary judgment has been
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served or filed.
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action and has not objected to Petitioner’s request for dismissal
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of the action.
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Respondent has actively sought dismissal of the
Thus, Petitioner is entitled to dismissal.
The dismissal of the petition will be denominated as a
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dismissal without prejudice.
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that there is a one-year limitations period in which a federal
However, Petitioner is forewarned
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petition for writ of habeas corpus must be filed.
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§ 2244(d)(1).
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at the conclusion of direct review.
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is tolled while a properly filed request for collateral review is
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pending in state court.
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183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 120 S.Ct. 1846
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(2000).
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time such an application is pending in federal court.
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Walker, 121 S.Ct. 2120, 2129 (2001).
28 U.S.C.
In most cases, the one-year period begins to run
Id.
The limitations period
28 U.S.C. § 2244(d)(2); Nino v. Galaza,
However, the limitations period is not tolled for the
Duncan v.
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IV.
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Accordingly, it is ORDERED that:
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1)
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DENIED; and
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2)
Petitioner’s motion for voluntary dismissal is GRANTED;
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The petition for writ of habeas corpus is DISMISSED
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Petitioner’s motion for the appointment of counsel is
and
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Disposition
without prejudice; and
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4)
The Clerk is DIRECTED to close this action because this
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order terminates the proceeding in its entirety.
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IT IS SO ORDERED.
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Dated:
b9ed48
November 10, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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