1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RONALD J. SMITH, Case No.: 22-CV-856 JLS (DDL)

12 Petitioner,

ORDER (1) GRANTING REQUEST

13 v. TO VOLUNTARILY DISMISS

CLAIMS; (2) DENYING

14 MARTIN GAMBOA, Warden, et al.,

RESPONDENTS’ MOTION TO

15 Respondents. DISMISS; AND (3) ADOPTING IN

PART AND MODIFYING IN PART

16

REPORT & RECOMMENDATION

17 (ECF Nos. 7, 11, 12) 18 19 20 Presently before the Court is Respondents Martin Gamboa and Rob Bonta’s Motion 21 to Dismiss Petition for Writ of Habeas Corpus (“Mot.,” ECF No. 7). Also before the Court 22 is Magistrate Judge David D. Leshner’s Report and Recommendation (“R&R,” ECF No. 23 11) advising the Court to conditionally grant Respondents’ Motion to Dismiss and dismiss 24 Petitioner Ronald J. Smith’s petition without prejudice. Petitioner was afforded 30 days to 25 file objections to Magistrate Judge Leshner’s R&R. Rather than submit any objections, 26 Petitioner instead filed a document titled First Amended Petition for Writ of Habeas Corpus 27 (“Am. Pet.,” ECF No. 12). 28 / / / 1 The First Amended Petition attempts to cure the deficiencies identified in Magistrate 2 Judge Leshner’s R&R. Magistrate Judge Leshner determined that the Petition must be 3 dismissed because it contained both unexhausted and exhausted claims. R&R at 10. 4 Specifically, three of the four grounds for relief were unexhausted. Id. at 6–8. Only 5 Petitioner’s first ground for relief—the allegedly improper exclusion of GPS evidence— 6 had been exhausted. Id. at 6. Petitioner’s First Amended Petition states that he “does not 7 wish to file objection’s on the []second and third an[d] fourth claim(s)” and “moves to 8 voluntarily delet[e] those ground[]s for relief.” Am. Pet. at 1 (cleaned up). Petitioner 9 makes clear his desire to “abandon[] those claims[, ]claims 2 & 3 & 4[,] and would like the 10 federal Southern District Court to proceed only on his exhausted claim 1.” Id. at 1–2 11 (cleaned up). 12 Construing the First Amended Petition broadly, see Erickson v. Pardus, 551 U.S. 13 89, 94 (2007) (“A document filed pro se is ‘to be liberally construed.’” (quoting Estelle v. 14 Gamble, 429 U.S. 97, 106 (1976)), the Court will treat the document as a request to 15 voluntarily dismiss the action without prejudice pursuant to Federal Rule of Civil 16 Procedure 41(a)(2). “The Ninth Circuit has long held that the decision to grant a voluntary 17 dismissal under Rule 41(a)(2) is addressed to the sound discretion of the District Court, 18 and its order will not be reversed unless the District Court has abused its discretion.” 19 Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982). However, 20 “[i]n ruling on a motion for voluntary dismissal, the District Court must consider whether 21 the defendant will suffer some plain legal prejudice as a result of the dismissal.” Id. Here, 22 there would be no legal prejudice to Respondents in allowing Petitioner to refile his habeas 23 petition asserting only the first ground for relief. Respondents would have had the same 24 burden if the Court had dismissed the petition in accordance with Magistrate Judge 25 Leshner’s recommendation, and Petitioner had notified the Court of his intention to cure 26 the Petition. See Bader v. Elecs. for Imaging, Inc., 195 F.R.D. 659, 662 (N.D. Cal. 2000) 27 (noting that “the threat of future litigation” does not result in plain legal prejudice (quoting 28 / / / 1 || Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996)). Accordingly, the 2 || Court GRANTS Petitioner’s Request. 3 In light of the decision to grant Petitioner’s request, the Court DENIES AS MOOT 4 Respondents’ Motion to Dismiss. As to Magistrate Judge Leshner’s R&R, the Court “need 5 || only satisfy itself that there is no clear error on the face of the record in order to accept the 6 ||recommendation,” as Petitioner failed to timely object to any findings contained therein. 7 ||Fed. R. Civ. P. 72 advisory committee’s note (citing Campbell v. U.S. Dist. Court, 501 8 || F.2d 196, 206 (9th Cir. 1974)). Having so satisfied itself, the Court ADOPTS IN PART 9 MODIFIES IN PART the R&R, straying only from the recommendation that 10 || Respondents’ Motion to Dismiss be conditionally granted for the reasons stated above. 11 As the Court has construed Petitioner’s so-called “First Amended Petition” as a 12 ||request for voluntary dismissal without prejudice, Petitioner must file a true amended 13 ||habeas petition. Accordingly, Petitioner SHALL FILE an amended habeas petition on or 14 || before March 14, 2023. If Petitioner does not file an amended habeas petition by that 15 || deadline, the Court will instruct the Clerk of the Court to close the case. Petitioner is 16 |/also instructed to caption the amended petition as “Second Amended Petition” for the 17 ||sake of clarity. If Petitioner files an amended petition on or before March 14, 2023, 18 Respondent SHALL FILE a responsive pleading on or before April 4, 2023. 19 IT IS SO ORDERED. 20 Dated: February 13, 2023 jae Lb monaitenus- 21 on. Janis L. Sammartino United States District Judge 23 24 25 26 27 28