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)

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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

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