Arana v. Virga

Filing 11

ORDER by Judge William Alsup denying 8 Motion to Dismiss; granting 9 Motion to Dismiss (Attachments: # 1 Certificate of Service) (dt, COURT STAFF) (Filed on 10/13/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 11-1972 WHA (PR)

RICARDO ARANA,
Petitioner,

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For the Northern District of California

United States District Court

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ORDER GRANTING MOTION TO
VOLUNTARILY DISMISS AND
STRIKING UNEXHAUSTED
CLAIM; TO SHOW CAUSE

v.
TIM VIRGA, Warden,

(Docket Nos. 8, 9)

Respondent.
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Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus

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pursuant to 28 U.S.C. 2254. Respondent was ordered to show cause why the petition should not

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be granted based upon the eleven claims set forth in petitioner’s First Amended Petition.

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Respondent moved to dismiss the petition on the grounds that one of the claims, Claim Five,

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was not exhausted. Petitioner has responded to that motion by moving to voluntarily dismiss

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Claim Five and proceed based only upon the other ten claims, which claims Respondent

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concedes have been exhausted.

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Good cause appearing, petitioner’s motion to voluntarily dismiss the unexhausted Claim

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Five (docket number 9) is GRANTED, and Claim Five is STRICKEN from the First Amended

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Petition. Consequently, respondent’s motion to dismiss (docket number 8) is DENIED as moot.

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Respondent shall file with the court and serve on petitioner, within ninety days of the

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issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on

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the other ten cognizable claims in the First Amended Petition. Respondent shall file with the

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answer and serve on petitioner a copy of all portions of the state trial record that have been

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transcribed previously and that are relevant to a determination of the issues presented by the

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petition. If petitioner wishes to respond to the answer, he shall do so by filing a traverse with

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the court and serving it on respondent within thirty days of the date the answer is filed.

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IT IS SO ORDERED.

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Dated: October

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, 2011.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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