Mancilla v. Harris

Filing 25

ORDER Regarding Petitioner's 24 Motion to Withdraw Unexhausted Claims signed by Magistrate Judge Gary S. Austin on 03/03/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANDREW MANCILLA,

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Petitioner,

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1:14-cv-00935-AWI-GSA-HC
ORDER REGARDING PETITIONER’S
MOTION TO WITHDRAW
UNEXHAUSTED CLAIMS (ECF No. 24)

v.
W.L. MUNIZ,
Respondent.

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Petitioner is a state prisoner proceeding pro se in a habeas corpus action pursuant to 28

18 U.S.C. § 2254.
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On December 3, 2014, Respondent filed a motion to dismiss the petition because the

20 petition is a mixed petition. On February 13, 2015, the undersigned issued a Findings and
21 Recommendation that recommended that Respondent’s motion to dismiss be granted and the
22 petition for writ of habeas corpus be dismissed without prejudice.

In the Findings and

23 Recommendation, Petitioner was given the option of moving to withdraw the unexhausted
24 claims within thirty (30) days of the date of service of this Findings and Recommendation. On
25 February 25, 2015, Petitioner submitted a motion to withdraw the unexhausted claims. The
26 Court notes that Petitioner states in his motion to withdraw the unexhausted claims that, “claim 4
27 is to be withdrawn from this habeas corpus upon dated received as this so is in compliance to 28
28 U.S.C. 2254(b)(1) just as the Magistrate requested.”

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However, in the Findings and

1 Recommendation, the undersigned found that claims 1 through 3 of the petition are unexhausted.
The motion to withdraw unexhausted claims is not signed by Petitioner. Local Rule 131

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3 and Rule 11 of the Federal Rules of Civil Procedure require a document submitted to the Court
4 for filing to include an original signature. Therefore, the Court is unable to consider Petitioner’s
5 motion at this time. If Petitioner would like to proceed on the motion to withdraw unexhausted
6 claims that he filed on February 25, 2015, he is directed to submit a document stating that he
7 submitted the instant motion to withdraw unexhausted claims and he must sign it under penalty
8 of perjury. The document should contain an original signature. Petitioner is granted thirty (30)
9 days from the date of service of this order to comply with the Court’s directive.
Accordingly, IT IS HEREBY ORDERED that Petitioner is DIRECTED to file a

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11 statement that he submitted the instant motion to withdraw the unexhausted claims to the Court
12 and he must sign it under penalty of perjury within thirty (30) days of the date of service of this
13 Order.
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IT IS SO ORDERED.
Dated:

March 3, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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