Kriske v. Evans

Filing 29

ORDER signed by Magistrate Judge Dale A. Drozd on 01/29/10 granting 28 Motion to withdraw ground 5 of his petition. Ground 5 of the pending petition is deemed withdrawn. This matter is now submitted for decision. (Plummer, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. WARDEN EVANS, Respondent. / Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 14, 2008, respondent filed an answer to the petition. Therein, respondent argues, inter alia, that ground five of the federal habeas petition pending before the court is unexhausted because petitioner never presented that claim to the California Supreme Court. Respondent also argues that, in any event, ground five of the petition lacks merit. In response to the answer, petitioner filed several motions, including a motion for a stay and abeyance. Petitioner also filed a traverse. On December 8, 2009, the court denied petitioner's motion for a stay and abeyance without prejudice. The court was unable to determine from petitioner's one-page motion whether he had good cause for not exhausting ground five of his petition, whether his 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA WILLIAM ADAM KRISKE, Petitioner, No. CIV S-08-1683 JAM DAD P

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unexhausted claim is potentially meritorious, or whether he has been diligent in pursuing his unexhausted claim. The court also granted petitioner leave to file a renewed motion for a stay and abeyance within thirty days. In response to the court's order, petitioner has filed a motion to withdraw ground five of his petition. Petitioner has informed the court that he would like to proceed on the other four grounds of his petition, all of which have been exhausted in state court. In this case, neither party disputes that ground five of the pending petition is unexhausted. It is well established that a federal court cannot grant habeas relief based on a "mixed petition." See Rhines v. Weber, 544 U.S. 269, 273-74 (2005). Accordingly, the court will grant petitioner's motion to withdraw ground five of his petition, and this matter will be deemed submitted for decision. Petitioner is advised that as long as he keeps the court informed of any change of address, no further action on his part is necessary. Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner's January 15, 2010 motion to withdraw ground five of his petition (Doc. No. 28) is granted; 2. Ground five of the pending petition is deemed withdrawn; and 3. This matter is now submitted for decision. DATED: January 29, 2010.

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