                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 18 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

GREGORY RICHARDSON,                             No. 18-56367

                Petitioner-Appellant,           D.C. No. 2:17-cv-07406-VBF-PLA

 v.
                                                MEMORANDUM*
STUART SHERMAN, Warden,

                Respondent-Appellee.

                  Appeal from the United States District Court
                       for the Central District of California
                 Valerie Baker Fairbank, District Judge, Presiding

                             Submitted July 15, 2019**

Before:      SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.

      Gregory Richardson appeals pro se from the district court’s order denying

his motion to voluntarily dismiss his 28 U.S.C. § 2254 habeas petition pursuant to

Federal Rule of Civil Procedure 41(a). We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo, see Am. Soccer Co. v. Score First Enters., 187 F.3d



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1108, 1109-10 (9th Cir. 1999), and we vacate and remand.

      Richardson had an absolute right to a dismissal without prejudice because he

filed a notice of voluntary dismissal before the appellee filed an answer or moved

for summary judgment. See Fed. R. Civ. P. 41(a)(1)(A); Am. Soccer Co., 187 F.3d

at 1110. Appellee concedes, and we agree, that the district court erred by denying

Richardson’s motion and by applying the Prisoner Reform Litigation Act, 28

U.S.C. § 1915(g), to Richardson’s habeas corpus petition. See Andrews v. King,

398 F.3d 1113, 1122-23 (9th Cir. 2005) (“[T]he language of § 1915(g) does not

encompass habeas petitions.”). Accordingly, we vacate the judgment dismissing

Richardson’s petition with prejudice and order that the petition be dismissed

without prejudice. See Am. Soccer Co., 187 F.3d at 1112.

      VACATED and REMANDED.




                                         2                                      18-56367
