Vong v. Clark

Filing 16

ORDER OF DISMISSAL. More than thirty days have elapsed since the Court filed its order requiring a notice of election. Petitioner, however, has failed to file a timely notice of election. Accordingly, the action is DISMISSED. Signed by Judge James Ware on 4/21/2011. (ecg, COURT STAFF) (Filed on 4/22/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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PHUOC VONG,

Petitioner,

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vs.

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KEN CLARK, Warden,
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Respondent.
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No. C 09-5851 JW (PR)

ORDER OF DISMISSAL

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Petitioner filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254

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challenging the forfeiture of 360 days of time credits, placement in administrative

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segregation for one year and assessment of twenty-four unfavorable behavior points

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following a disciplinary hearing held at Salinas Valley State Prison wherein he was found

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guilty of possession of a prisoner-manufactured weapon. Doc. #1. After the court issued

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an order to show cause, Respondent filed a motion to dismiss the petition on the ground

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that Petitioner failed to exhaust state court remedies as to one of his three claims prior to

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filing suit here. Doc. #11. Respondent’s motion was unopposed.

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On March 18, 2011, the Court granted Respondent’s motion to dismiss, but rather

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than dismissing the action outright, the Court gave Petitioner thirty (30) days to file a

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notice of election, choosing either to:

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(1) dismiss the unexhausted claim and go forward in this action with only the
exhausted claims; or
(2) dismiss this action and return to state court to exhaust all claims before filing a
new federal petition presenting all of his claims; or
(3) move to stay these proceedings while he exhausts his unexhausted claims in the
California Supreme Court.

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More than thirty days have elapsed since the Court filed its order requiring a notice

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of election. Petitioner, however, has failed to file a timely notice of election. Accordingly,

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the action is DISMISSED.

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For the Northern District of California

United States District Court

IT IS SO ORDERED.
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DATED:

April 21, 2011
JAMES WARE
United States District Chief Judge

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N:\Pro - Se & Death Penalty\JW\April 2011\09-5851 Vong-order of dismissal.wpd

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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PHUOC VONG,

Case Number: CV09-05851 JW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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KEN CLARK et al,
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Defendant.
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For the Northern District of California

United States District Court

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on April 22, 2011, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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Phuoc Vong T-96585
CSATF
C7-109
P.O. Box 5246
Corcoran, CA 93212

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Dated: April 22, 2011

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Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk