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