Wilson v. Adams

Filing 45

ORDER Re 42 Respondent's Motion to Dismiss. Respondent shall file and serve Answer no later than 2/11/2013. Petitioner may file and serve Traverse no later than March 11, 2013. Signed by Judge Edward M. Chen on 12/11/2012. (emcsec, COURT STAFF) (Filed on 12/11/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEITH WILSON,

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Petitioner,
v.

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For the Northern District of California

United States District Court

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No. C-02-3278 EMC

DERRAL ADAMS,

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ORDER RE RESPONDENT’S MOTION
TO DISMISS

Respondent.
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(Docket No. 42)
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Respondent has moved to dismiss Claims Two and Three, as pled in Petitioner’s first

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amended petition for writ of habeas corpus. Respondent argues that dismissal is warranted because

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the claims are untimely. Alternatively, Respondent argues in favor of dismissal on the ground that

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the claims have not been exhausted. In his response, Petitioner agrees that Claims Two and Three

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have not been exhausted. Petitioner asks that he be given permission to strike the unexhausted

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claims and proceed with the only exhausted claim (i.e., Claim One). See Anthony v. Cambra, 236

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F.3d 568 (9th Cir. 2000) (noting that “district courts must provide habeas litigants with the

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opportunity to amend their mixed petitions by striking unexhausted claims as an alternative to

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suffering dismissal”); James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994) (noting that, “[i]n general, a

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habeas petition should be dismissed if a petitioner has failed to exhaust state remedies as to even one

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claim”; but adding that “[a] petitioner may . . . choose to strike any unexhausted claims and proceed

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on the exhausted ones”).

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The Court grants Petitioner’s request. Accordingly, Claims Two and Three are hereby

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stricken from the first amended petition, and this case shall proceed with respect to Claim One only.

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With respect to Claim One, Respondent is ordered to file and serve an answer in accordance
with Section 2254 Rule 5 and Habeas Corpus Local Rule 2254-6 no later than February 11, 2013.

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Petitioner may serve and file a traverse responding to matters raised in the answer in

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accordance with Section 2254 Rule 5 and Habeas Corpus Local Rule 2254-6 no later than March 11,

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2013.

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The hearing on Respondent’s motion is VACATED.

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This order disposes of Docket No. 42.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: December 11, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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