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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Johnny David Cato,

Petitioner,

v. 

Charles L. Ryan, et al.,

Respondents.

No. CV-15-01804-PHX-JAT (ESW)

REPORT AND 

RECOMMENDATION

TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES 

DISTRICT JUDGE:

On 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Dismissal (Doc. 16) withdrawn, (ii) rejected the February 8, 2016 Report and 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).

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On July 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). 

As to 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.

Under Rule 41(a)(2) of the Federal Rules of Civil Procedure, the Court has the 

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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.”). 

Petitioner’s 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). 

Effect of Recommendation 

This 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 judgment entered pursuant to the 

Magistrate Judge’s recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 

1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).

Dated this 13th day of January, 2017. 

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