United States District Court, D. Arizona
REPORT AND RECOMMENDATION
JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE
February 2, 2016, Petitioner Johnny David Cato
(“Petitioner”) filed a “Motion for
Voluntary Dismissal” (Doc. 16). Respondents did not
oppose Petitioner's request. (Doc. 17). In a February 8,
2016 Report and Recommendation, the undersigned recommended
that the Court grant Petitioner's “Motion for
Voluntary Dismissal” (Doc. 16). The Court allowed
Petitioner to withdraw his Motion as the Court found that it
was unclear whether Petitioner had considered the possibility
that, following dismissal, any re-filed federal habeas
petition may be barred by the statute of limitations. (Doc.
20). In his June 9, 2016 filing (Doc. 21), Petitioner
requested to withdraw his Motion for Voluntary Dismissal
(Doc. 16). The Court (i) deemed Petitioner's Motion for
Voluntary Dismissal (Doc. 16) withdrawn, (ii) rejected the
February 8, 2016 Report and Recommendation, and (iii)
referred the matter to the undersigned for further
proceedings. (Doc. 23).
19, 2016, the undersigned ordered Petitioner to file his
reply to Respondents' Limited Answer (Doc. 15) no later
than August 17, 2016. (Doc. 24). Instead of filing a reply,
Petitioner filed a “Notice of Filing State Court
Proceedings” (Doc. 25). In the Notice, Petitioner
“moves the court to  stay these proceedings on the
inactive calander [sic] until the [state] court rules in the
below [Rule 32] proceedings . . . .” Petitioner
alternatively moves for a voluntary dismissal, stating that
“Petitioner who seeks to file a new habeas will still
be within the time limits, thus moves to withdraw his current
Habeas without prejudice.” Respondents have not
responded to Petitioner's Notice. See LRCiv
7.2(i) (failure to file answering memoranda may be deemed a
consent to the granting of a motion).
Petitioner's request to stay this proceeding, the Supreme
Court has instructed that a “stay and abeyance should
be available only in limited circumstances” and is
“only appropriate when the district court determines
there was good cause for the petitioner's failure to
exhaust his claims first in state court.” Rhines v.
Weber, 544 U.S. 269, 277 (2005) (explaining that a stay
“frustrates AEDPA's objective of encouraging
finality” and “undermines AEDPA's goal of
streamlining federal habeas proceedings by decreasing a
petitioner's incentive to exhaust all his claims in state
court prior to filing his federal petition”).
Petitioner's Notice (Doc. 25) does not address the
reasons for his failure to exhaust his habeas claims prior to
initiating this action. The undersigned finds that Petitioner
has not shown the requisite good cause to justify a stay.
See Mena v. Long, 813 F.3d 907, 911-12 (9th Cir.
2016) (holding that a court has the discretion to stay a
fully unexhausted habeas petition under “the
circumstances set forth in Rhines” and stating
that “a stay is granted only when the petitioner shows,
among other things, ‘good cause for his failure to
exhaust'”) (quoting Rhines, 544 U.S. at
277). Moreover, Petitioner has not shown that his habeas
claims are potentially meritorious. See Rhines, 544
U.S. at 278. It is recommended that the Court deny
Petitioner's request to stay this proceeding.
Rule 41(a)(2) of the Federal Rules of Civil Procedure, the
Court has the discretion to grant a petitioner's request
for dismissal after the opposing party has answered. “A
district court should grant a motion for voluntary dismissal
under Rule 41(a)(2) unless a defendant can show that it will
suffer some plain legal prejudice as a result.”
Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001);
see also Stevedoring Services of America v. Armilla
Int'l B.V., 889 F.2d 919, 921 (9th Cir. 1989)
(stating the purpose of Rule 41(a)(2) is “to permit a
plaintiff to dismiss an action without prejudice so long as
the defendant will not be prejudiced . . . or unfairly
affected by dismissal.”).
Notice (Doc. 25) reflects that he has considered the issue as
to whether his re-filed federal habeas petition would be
timely. Respondents have not objected to Petitioner's
request to withdraw the Petition for Writ of Habeas Corpus
(Doc. 1). Accordingly, IT IS RECOMMENDED
that the Court grant Petitioner's request to voluntarily
dismiss this proceeding without prejudice (Doc. 25).
recommendation is not an order that is immediately appealable
to the Ninth Circuit Court of Appeals. Any notice of appeal
pursuant to Rule 4(a)(1), Federal Rules of Appellate
Procedure, should not be filed until entry of the district
court's judgment. However, pursuant to Rule 72(b), Fed.
R. Civ. P., the parties shall have fourteen days from the
date of service of a copy of this recommendation within which
to file specific written objections with the Court.
Thereafter, the parties have fourteen days within which to
file a response to the objections. Failure to file timely
objections to any factual determinations of the Magistrate
Judge may be considered a waiver of a party's right to
appellate review of the findings of fact in an order or