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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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 RAYMOND E. LOPEZ, No. C 13-0649 TEH (PR) 5 ORDER GRANTING PETITIONER FOURTEEN DAYS TO RESPOND Petitioner, 6 v. 7 GREG D. LEWIS, Warden, 8 Respondent. 9 / United States District Court For the Northern District of California 10 11 On February 13, 2013, Petitioner Raymond E. Lopez, an 12 inmate at Pelican Bay State Prison, filed a petition for a writ of 13 habeas corpus pursuant to 28 U.S.C. § 2254. 14 Petitioner moved for a stay of his petition in order to exhaust 15 unexhausted claims. 16 On the same date, On March 19, 2013, the Court issued an Order Denying 17 without prejudice Petitioner’s motion for a stay. 18 Order, the Court noted that Petitioner alleged seven claims in his 19 petition, but that only one of them appeared to have been exhausted 20 in state court. 21 Petitioner’s motion did not meet the requirements to stay his 22 petition and explained the two types of stays that were available to 23 him. 24 pursue one of the two options for a stay or to inform the Court that 25 he wished to proceed on the exhausted claims that were presented in 26 his petition. 27 28 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 1 proceed only on his exhausted claims, or communicated with the Court 2 in any manner. 3 The general rule is that a federal district court must 4 dismiss a federal habeas petition containing any claim as to which 5 state remedies have not been exhausted. 6 509, 522 (1982). 7 allow the petitioner to exhaust in state court. 8 544 U.S. 269, 277 (2005). 9 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 10 Petitioner fourteen more days in which to inform the Court how he 11 wishes to proceed. 12 petition that contains exhausted and unexhausted claims such as this 13 petition, must be dismissed, unless the petitioner’s motion for a 14 stay is granted. 15 not file a re-newed motion for a stay or inform the Court that he 16 wishes to proceed only with his exhausted claims, his mixed petition 17 will be dismissed without prejudice to re-filing when his claims are 18 exhausted. As noted above, a mixed petition, that is a Therefore, if, in fourteen days, Petitioner does 19 20 IT IS SO ORDERED. 21 22 DATED 04/22/2013 THELTON E. HENDERSON United States District Judge 23 24 25 26 27 28 G:\PRO-SE\TEH\HC.13\Lopez 13-649-HC eot 2 wks.wpd 2

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