1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 JACK BENJAMIN HESSIANI, Case No. 2:23-cv-03553-JWH-SSC 12 Petitioner, ORDER DISMISSING ACTION 13 v. WITHOUT PREJUDICE 14 BRIAN BIRKHOLTZ, Warden, 15 Respondent. 16 17 18 19 20 21 22 23 24 25 26 27 1 On May 4, 2023, Petitioner, a federal prisoner proceeding pro se, filed this 2 habeas action pursuant to

On July 12, 2023, Respondent 3 filed a motion to dismiss the petition, arguing, in part, that the petition is a 4 disguised and untimely motion to vacate, set aside, or correct Petitioner’s 5 sentence pursuant to

On August 8, 2023, Petitioner filed a 6 request to withdraw the petition.3 7 Under Rule 41 of the Federal Rules of Civil Procedure, a petitioner may 8 voluntarily dismiss a case without a court order before the respondent has 9 served an answer or motion for summary judgment. 10 Fed. R. Civ. P. 41(a)(1)(A)(i). Voluntary dismissal under Rule 41(a)(1)(A)(i) 11 remains available where, as here, the respondent has filed only a motion to 12 dismiss the petition. See Richardson v. Sherman,

, at *1–*2 13 (C.D. Cal. Sept. 4, 2018) (in habeas matter pursuant to

14 explaining that voluntary dismissal under Rule 41(a)(1), rather than court- 15 ordered dismissal under Rule 41(a)(2), applies where respondent has filed a 16 motion to dismiss but not an answer or motion for summary judgment). Unless 17 a petitioner requests otherwise or has previously dismissed the same claim(s), a 18 voluntary dismissal under Rule 41(a)(1)(A)(i) shall be without prejudice. 19 Fed. R. Civ. P. 41(a)(1)(B). 20 Because Respondent has not filed an answer or motion for summary 21 judgment, the Court construes Petitioner’s request to withdraw the petition as a 22 notice of voluntary dismissal pursuant to Rule 41(a)(1)(A)(i). As this appears to 23 24 25 26 1 Pet. [ECF No. 1]. 27 2 Mot. to Dismiss [ECF No. 11]. be the first time that Petitioner has dismissed these claims, this action is DISMISSED without prejudice. 3 IT IS SO ORDERED. : AV AL 5\|| Dated: September 11, 2023 : 6 ONITED: STATES DISTRICT JUDGE & 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28