15 F.3d 1089
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
James Morris SILAS, Petitioner-Appellant,
v.
Theo WHITE, Warden, Respondent-Appellee.
No. 92-55853.
United States Court of Appeals, Ninth Circuit.
Submitted Nov. 8, 1993.*
Decided Jan. 28, 1994.
Before: CHOY, GOODWIN, and SKOPIL, Circuit Judges.
MEMORANDUM**
Silas appeals pro se the district court's dismissal of his petition for writ of habeas corpus. The district court denied Silas' petition and dismissed the action without prejudice, adopting the findings, conclusions and recommendations of the United States Magistrate Judge. The magistrate judge recommended that the petition be denied and action dismissed without prejudice based on Silas' failure to exhaust his state court remedies as to some of the claims brought.
In response to the magistrate judge's report and recommendation, Silas filed a response on August 5, 1992, which stated that he had read the report and recommendation of the magistrate judge, and had no objections. He stated that he intended to file a petition which contains only those claims which had been exhausted at the state level. It was based on this representation that the magistrate judge recommended that the action be dismissed without prejudice.
The dismissal of Silas' petition is not an appealable order. "To be appealable, an order must be adverse to the appealing party. As a general rule, a plaintiff may not appeal a voluntary dismissal because it is not an involuntary adverse judgment against him." UNIOIL, Inc. v. E.F. Hutton & Co., 809 F.2d 548, 555 (9th Cir.1986), cert. denied, 484 U.S. 822 (1987). The dismissal of Silas' petition was voluntary, because Silas consented to it. Therefore it is not appealable.
DISMISSED.
The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3