(HC) James v. Smith, No. 1:2008cv01325 - Document 15 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS to Grant Petitioner's Motion to Dismiss Petition for Writ of Habeas Corpus re 10 . Motion referred to Judge O'Neill, Objections to F&R due by 4/27/2009, signed by Magistrate Judge Theresa A. Goldner on 4/2/09. (Gil-Garcia, A)

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(HC) James v. Smith Doc. 15 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 KEVIN ANTHONY JAMES, JR., 10 11 Petitioner, v. 12 WARDEN SMITH, 13 Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-01325-TAG HC FINDINGS AND RECOMMENDATIONS TO GRANT PETITIONER’S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (Doc. 10) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE TO CASE 15 16 17 18 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. PROCEDURAL HISTORY 19 Petitioner filed the instant federal petition on September 8, 2008, challenging his 20 conviction in the Superior Court for the District of Columbia on March 5, 1999 for unspecified 21 crimes and his two consecutive fifteen years to life sentences. (Doc. 1, p. 3). Petitioner appealed 22 his conviction to the District of Columbia Court of Appeals, which affirmed the conviction. (Id. 23 at p. 2). In his petition, Petitioner indicates that he appealed his conviction to the District of 24 Columbia Superior Court, but that the appeal was denied on February 26, 2004. (Id. at p. 4). 25 On March 29, 2005, the D.C. Court of Appeals denied his appeal. (Id. at p. 3). 26 On December 19, 2008, the Court issued an order to show cause why the petition should 27 not be dismissed for lack of jurisdiction because the District of Columbia Court Reform and 28 Criminal Procedure Act entirely divested the federal courts of jurisdiction to hear habeas corpus 1 Dockets.Justia.com 1 petitions filed by prisoners challenging convictions from the District of Columbia who had 2 remedies available to them pursuant to D.C. Code § 23-110. (Doc. 9). On January 26, 2009, 3 Petitioner filed a motion to withdraw his petition. (Doc. 10). 4 DISCUSSION 5 Subject to other provisions of law, a Petitioner may voluntarily dismiss an action without 6 leave of court before service by the adverse party of an answer or motion for summary judgment. 7 Fed. R. Civ. P. 41(a). Otherwise, an action shall not be dismissed except upon order of the court 8 and upon such terms and conditions as the court deems proper. Id. Here, no answer has been 9 served or filed. Therefore, Petitioner may voluntarily dismiss his petition without leave of court. 10 ORDER 11 The Court HEREBY DIRECTS the Clerk of the Court to assign a District Judge to this 12 13 case. RECOMMENDATIONS 14 15 Based on the foregoing, the Court recommends that: 16 1. Petitioner’s motion for voluntary dismissal (Doc. 10), be GRANTED; and 17 2. The petition for writ of habeas corpus (Doc. 1), be DISMISSED. 18 These findings and recommendations are submitted to the United States District Judge 19 20 21 22 23 24 25 26 27 28 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within twenty (20) days after being served with a copy of these findings and recommendations, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are /// 2 1 advised that failure to file objections within the specified time may waive the right to appeal the 2 District Judge’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 IT IS SO ORDERED. 5 6 Dated: April 2, 2009 j6eb3d /s/ Theresa A. Goldner UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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