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Gayler v. Neven

United States District Court, D. Nevada

January 22, 2018

BRANDYN WILLIAM GAYLER, Petitioner,
v.
NEVEN, et al., Respondents.

          ORDER

          ANDREW P. GORDON, United States District Judge

         This habeas matter under 28 U.S .C. § 2254 comes before the Court on petitioner's motion (ECF No. 62) to voluntarily dismiss the petition and his application (ECF No. 63) for a certificate of appealability (COA). Petitioner additionally has filed a notice of appeal (ECF No. 64) seeking to appeal following upon his voluntary dismissal of the entire petition.

         Background

         In its most recent order, the Court, inter alia: (a) held that Ground 6 and a portion of Ground 7 were unexhausted; (b) dismissed Grounds 2, 3, 4, 5 and the exhausted portion of Ground 7 with prejudice as procedurally defaulted; and (c) gave petitioner an opportunity to file a motion for dismissal without prejudice of the entire petition, for a partial dismissal of only the unexhausted grounds, and/or for other appropriate relief, such as a stay to return to state court to exhaust the unexhausted grounds. (ECF No. 61, at 11.)

         In response, petitioner has filed the instant motion, application, and notice of appeal. Petitioner requests that the Court “dismiss the entire petition” - without specifying whether the dismissal sought is with or without prejudice - and grant a CO A “because this Court's order, Dkt #61, is at the very least, debatable among jurists of reason, as erroneous.” (ECF No. 62, at 1.) The accompanying COA application presents argument seeking to challenge the Court's prior interlocutory holdings that Ground 6 and a portion of Ground 7 are unexhausted and that Grounds 2, 3, 5 and the exhausted portion of Ground 7 are procedurally defaulted. (ECF No. 63.)

         The Court otherwise has not entered a final judgment in this matter resolving all claims.

         To recap, prior to the current motions, petitioner had abandoned Ground 1, and that ground had been dismissed without prejudice. (ECF No. 47, at 9.) Grounds 2, 3, 4 and 5 had been dismissed with prejudice as procedurally defaulted. (ECF No. 61, at 11.) Ground 6 remained before the Court as an unexhausted ground, with a pending directive to petitioner to seek appropriate relief with regard to that ground to avoid a dismissal of the entire petition under Rose v. Lundy, 455 U.S. 509 (1982). (ECF No. 61, at 11.) Ground 7 also, in part, remained before the Court as an unexhausted ground with such a pending directive; and the remaining exhausted portion of Ground 7 had been dismissed with prejudice as procedurally defaulted. (ECF No. 61, at 11.) Petitioner had abandoned Ground 8, and the ground had been dismissed without prejudice. (ECF No. 47, at 9.) Grounds 9 and 10 remained before the Court. (See ECF No. 52, at 4-5.)[1]

         Prior to petitioner's motions, no final judgment has been entered in this matter as claims remained pending for disposition.

         Discussion

         Motion for Voluntary Dismissal

         Petitioner's motion for voluntary dismissal is self-operative, and the entire petition thus automatically stands as dismissed without the necessity of any further action by the Court.

         Under Federal Rule of Civil Procedure 41(a)(1), a petitioner has an absolute right to voluntarily dismiss his action prior to service of an answer or a motion for summary judgment. The dismissal is effective on filing, and no court order is required. The filing of the voluntary dismissal automatically terminates the action. See, e.g., Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). The respondents' filing of a motion to dismiss rather than a motion for summary judgment does not preclude a unilateral voluntary dismissal. See, e.g., Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995).

         A notice filed in the form of a motion has the same effect as a notice. See generally 9 C. Wright, A. Miller, M. Kane, et al, Federal Practice & Procedure § 2363, at nn. 26-37 (3rd ed. 2005). Accordingly, motions for voluntary dismissal filed prior to an answer or summary judgment motion “are automatically granted.” Luna v. Kernan, 784 F.3d 640, 643 (9th Cir. 2015)(habeas action).

         The action therefore is dismissed. The Court will direct the Clerk to close the case. Cf. Luna, 784 F.3d at 643 (similar action on motion).

         COA Application

         The only question that remains is whether the Court should grant the application for a COA as to the prior interlocutory holdings as to Grounds 2, 3, 5, 6 and 7.

         As discussed below, the Court denies a COA, first because it does not appear that appellate jurisdiction exists to review the prior interlocutory rulings herein and, second because a COA otherwise is not warranted under the applicable criteria.

         Appellate Jurisdiction

         With deference to the final authority of the Court of Appeals in matters concerning its own jurisdiction, it would appear that, following petitioner's voluntary dismissal of the entire petition, there is no jurisdiction on the pending appeal to review the district court's prior interlocutory rulings.

         By the express terms of Rule 41(a)(1)(B), “[u]nless the notice . . . states otherwise, the dismissal is without prejudice.” Petitioner's motion to dismiss does not state otherwise, and the voluntary dismissal accordingly would appear to be without prejudice under Rule 41(a)(1)(B). “Such a dismissal leaves the parties as though no action had been brought.” Wilson, 111 F.3d at 692.

         A voluntary dismissal of an entire petition without prejudice does not produce an appealable final judgment. See, e.g., Concha, 62 F.3d at 1507; see also Coursen v. A.H. Robins Co., Inc.,764 F.2d 1329, 1342, as corrected by 773 F.2d 1049 (9th Cir. 198 5)(“ Appellant cannot make a nonfinal order appealable by ...


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