Lopez v. Lewis

Filing 5

ORDER Granting Petitioner Fourteen Days to Respond. Dispositive Motion due by 5/7/2013. Signed by Judge Thelton E. Henderson on 04/22/2013. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 4/23/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RAYMOND E. LOPEZ,

No. C 13-0649 TEH (PR)

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ORDER GRANTING PETITIONER
FOURTEEN DAYS TO RESPOND

Petitioner,
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v.
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GREG D. LEWIS, Warden,
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Respondent.
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/
United States District Court
For the Northern District of California

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On February 13, 2013, Petitioner Raymond E. Lopez, an

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inmate at Pelican Bay State Prison, filed a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254.

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Petitioner moved for a stay of his petition in order to exhaust

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unexhausted claims.

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On the same date,

On March 19, 2013, the Court issued an Order Denying

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without prejudice Petitioner’s motion for a stay.

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Order, the Court noted that Petitioner alleged seven claims in his

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petition, but that only one of them appeared to have been exhausted

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in state court.

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Petitioner’s motion did not meet the requirements to stay his

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petition and explained the two types of stays that were available to

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him.

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pursue one of the two options for a stay or to inform the Court that

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he wished to proceed on the exhausted claims that were presented in

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his petition.

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Doc. #4.

In the

The Court indicated that, as it was written,

The Court granted Petitioner twenty-eight days in which to

Twenty-eight days have passed and Petitioner has not filed
a re-newed motion for a stay, informed the Court that he wishes to

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proceed only on his exhausted claims, or communicated with the Court

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in any manner.

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The general rule is that a federal district court must

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dismiss a federal habeas petition containing any claim as to which

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state remedies have not been exhausted.

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509, 522 (1982).

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allow the petitioner to exhaust in state court.

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544 U.S. 269, 277 (2005).

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Rose v. Lundy, 455 U.S.

However, the court may stay a mixed petition to
Rhines v. Weber,

In the interests of justice, the Court will allow

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Petitioner fourteen more days in which to inform the Court how he

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wishes to proceed.

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petition that contains exhausted and unexhausted claims such as this

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petition, must be dismissed, unless the petitioner’s motion for a

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stay is granted.

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not file a re-newed motion for a stay or inform the Court that he

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wishes to proceed only with his exhausted claims, his mixed petition

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will be dismissed without prejudice to re-filing when his claims are

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exhausted.

As noted above, a mixed petition, that is a

Therefore, if, in fourteen days, Petitioner does

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IT IS SO ORDERED.

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DATED

04/22/2013
THELTON E. HENDERSON
United States District Judge

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