REPORT AND RECOMMENDATION

BRIAN A. TSUCHIDA, Magistrate Judge.

Petitioner Jesse Gonzales is a Washington state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Gonzales filed his petition challenging his 2012 conviction, upon plea, of first-degree rape and first degree burglary, on December 30, 2015. Dkt. 1. The Court directed service of the petition and appointed counsel to represent petitioner. Dkt. 9. On March 29, 2016, Respondent Margaret Gilbert filed her answer to the petition and relevant portions of the state court record. Dkt. 18 and 19. On April 13, 2016, petitioner, after consulting with his counsel, signed a consent to dismissal and moved to voluntarily dismiss his petition. Dkt. 22. Respondent filed no papers in opposition to the motion to dismiss. The undersigned recommends that the motion to voluntarily dismiss the petition be granted.

DISCUSSION

A petitioner may voluntarily dismiss an action without leave of court before service by the adverse party of an answer or motion for summary judgment. Fed. R. Civ. P. 41(a). Otherwise, an action shall not be dismissed except upon order of the court and upon such terms and conditions as the court deems proper. Id. Here, respondent filed an answer to the habeas petition and filed relevant portions of the state court record before petitioner filed his motion to voluntarily dismiss his habeas petition. See Dkt. 18, 19, and 22. However, respondent filed no papers in opposition to the motion to dismiss and the Court finds that dismissal as requested by petitioner is proper.

If the district court adopts the Report and Recommendation, it must determine whether a certificate of appealability ("COA") should issue. Rule 11(a), Rules Governing Section 2254 Cases in the United States District Courts ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."). When the district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue if the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The Court recommends that Mr. Gonzales not be issued a COA. In light of his signed consent and motion to voluntarily dismiss his claim, this Court did not determine whether Mr. Gonzales had stated a valid claim of the denial of a constitutional right. However, no jurist of reason would find it debatable whether this Court's dismissal of the petition based on the petitioner's signed consent and motion for dismissal is debatable or incorrect. Mr. Gonzales should address whether a COA should issue in his written objections, if any, to this Report and Recommendation.

CONCLUSION

The Court recommends DISMISSING the habeas petition and DENYING the issuance of a certificate of appealability.

Any objections to this Recommendation must be filed and served upon all parties no later than Tuesday, May 17, 2016. The Clerk should note the matter for Thursday, May 19, 2016, as ready for the District Judge's consideration if no objection is filed. If objections are filed, any response is due within 14 days after being served with the objections. A party filing an objection must note the matter for the Court's consideration 14 days from the date the objection is filed and served. The matter will then be ready for the Court's consideration on the date the response is due. Objections and responses shall not exceed twelve (12) pages. The failure to timely object may affect the right to appeal.