Reginald Holmes v. Federal District Court

Filing 11

ORDER DISMISSING PETITION WITHOUT PREJUDICE by Judge Manuel L. Real: (see attached) Accordingly, the petition is dismissed without prejudice. It is so ordered. (jm)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11
12

REGINALD HOLMES,

13

Petitioner,

14
15

v.
RAYMOND MADDEN, Warden,

16

Respondent.

)
)
)
)
)
)
)
)
)
)

Case No. CV 17-4651-R (AJW)

ORDER DISMISSING PETITION
WITHOUT PREJUDICE

17
18

Petitioner filed this petition for a writ of habeas corpus

19

raising six claims for relief. [Docket No. (“Dkt.”) 1]. On August 28,

20

2017, respondent filed a motion to dismiss the petition on the ground

21

that petitioner’s claims were unexhausted. [Dkt. 6]. Petitioner did

22

not file an opposition. On October 4, 2017, the Court issued an order

23

explaining that the petition was subject to dismissal based upon

24

petitioner’s failure to exhaust his state remedies. Petitioner was

25

informed that he had two options: (1) he could file a notice of intent

26

to dismiss the petition or (2) he could file a motion to stay the

27

proceedings to allow him to exhaust his state remedies. The October 4,

28

2017 order advised petitioner that failure to respond would be deemed
his

consent

to

dismissal

of

the

petition

without

prejudice.

1

Petitioner’s response to the order was due on November 1, 2017.

As of

2

the date of this order, petitioner has neither filed a response nor

3

requested additional time within which to do so.

4

“An application for a writ of habeas corpus on behalf of a person

5

in custody pursuant to the judgment of a State court shall not be

6

granted unless it appears that the applicant has exhausted the

7

remedies

8

2254(b)(1)(A); see Duncan v. Henry, 513 U.S. 364, 365 (1995)(per

9

curiam). As explained in respondent’s motion to dismiss and the

10

October 4, 2017 order, petitioner has failed to exhaust his state

11

remedies with respect to any of the claims presented in his petition.

12

Further, petitioner’s failure to respond to the October 4, 2017 order

13

is deemed his consent to the dismissal of this unexhausted petition.

14

Accordingly, the petition is dismissed without prejudice.

15

It is so ordered.

available

in

the

courts

of

the

State.”

28

U.S.C.

16
17

Dated: November 27, 2017

18
19
20
21
22
23
24
25
26
27
28

Manuel L. Real
United States District Judge

§