Kayik v. Diaz

Filing 2

ORDER setting deadline to file motion to stay or amended petition. Petitioner's response due by 01/07/13. Signed by Judge Thelton E. Henderson on 11/27/12. (tehlc3, COURT STAFF) (Filed on 11/27/2012)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4
5

ERHAN KAYIK,

6
7
8

NO. C12-5907 TEH

Petitioner,

ORDER SETTING DEADLINE
TO FILE MOTION TO STAY OR
AMENDED PETITION

v.
RALPH M. DIAZ,

9

Respondent.

11
For the Northern District of California

United States District Court

10
Petitioner Erhan Kayik, has filed a petition for writ of habeas corpus that he

12 acknowledges contains both exhausted and unexhausted claims. He states an intent to “file a
13 motion to stay and hold his petition in abeyance so that he can exhaust the unexhausted
14 claims in state court.” Pet. ¶ 122. As Petitioner appears to recognize, “habeas petitions
15 containing both unexhausted and exhausted claims” are subject to dismissal. Rose v. Lundy,
16 455 U.S. 509, 522 (1982); but cf. 28 U.S.C. § 2254(b)(2) (providing that a habeas petition
17 may be denied on the merits notwithstanding a failure to exhaust). To ensure that this case
18 proceeds efficiently, IT IS HEREBY ORDERED that, on or before January 7, 2013,
19 Petitioner shall file either a motion to stay or an amended petition containing only exhausted
20 claims.
21
22 IT IS SO ORDERED.
23
24 Dated: 11/27/12
25
26
27
28

THELTON E. HENDERSON, JUDGE
UNITED STATES DISTRICT COURT