Hsu v. Benov
Filing
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ORDER signed by Chief Judge Anthony W. Ishii on 10/31/2011 granting 8 Motion for voluntary dismissal of petition; DISMISSING CASE without prejudice and directing Clerk to close action. CASE CLOSED.(Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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POLO SHU HSU,
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Petitioner,
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v.
MICHAEL L. BENOV, Warden,
Respondent.
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1:11-cv—01683-AWI-SKO-HC
ORDER GRANTING PETITIONER’S
MOTION FOR VOLUNTARY DISMISSAL OF
THE PETITION (DOC. 8)
ORDER DISMISSING WITHOUT
PREJUDICE THE PETITION FOR WRIT
OF HABEAS CORPUS ON THE GROUND OF
MOOTNESS (DOC. 1)
ORDER DIRECTING THE CLERK TO
CLOSE THE ACTION
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Petitioner is a federal prisoner proceeding pro se with a
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
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Pending before the Court is the Petitioner’s motion for voluntary
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dismissal of the petition, which was filed on October 24, 2011.
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Although on October 13, 2011, the Court directed Respondent
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to file a response to the petition in sixty days, the named
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respondent has not appeared in the action.
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instant motion for dismissal of the petition on the ground that
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the petition is moot because on October 14, 2011, Petitioner
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received the one day of credit that he sought by the petition for
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writ of habeas corpus.
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Petitioner filed the
Subject to other provisions of law, a Petitioner may
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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.
It appears that the only relief Petitioner sought was
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earlier release from custody.
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was released from custody early.
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because the Court may no longer grant any effective relief.
It further appears that Petitioner
The matter is therefore be moot
See
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Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (holding that the
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habeas claim was moot where a former inmate sought placement in a
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community treatment center but was subsequently released on
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parole and no longer sought such a transfer).
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It is concluded that Petitioner is entitled to dismissal.
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Petitioner requests a dismissal without prejudice.
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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
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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).
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However, Petitioner is forewarned
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
Accordingly, it is ORDERED that:
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Duncan v.
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1)
Petitioner’s motion for voluntary dismissal is GRANTED;
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The petition for writ of habeas corpus is DISMISSED
and
without prejudice; and
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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:
0m8i78
October 31, 2011
CHIEF UNITED STATES DISTRICT JUDGE
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