Lopez v. Lewis

Filing 7

ORDER OF DISMISSAL. Signed by Judge Thelton E. Henderson on 05/13/2013. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 5/14/2013)

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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 OF DISMISSAL

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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exhausted and unexhausted claims.

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moved for a stay of his petition while he exhausted his unexhausted

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claims in state court.

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The petition contained

On the same date, Petitioner

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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Court indicated that, as it was written, Petitioner’s motion did not

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meet the requirements to stay his petition and explained the two

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types of stays that were available to him.

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Petitioner twenty-eight days in which to pursue one of the two

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options for a stay or to inform the Court that he wished to proceed

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only on the exhausted claims that were presented in his petition.

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Doc. #4.

The

The Court granted

After twenty-eight days Petitioner had not filed a re-

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newed motion for a stay, informed the Court that he wished 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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On April 23, 2013, the Court issued an Order granting

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Petitioner fourteen more days in which to respond.

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Order, the Court explained that the general rule is that a federal

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district court must dismiss a mixed petition containing exhausted

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and unexhausted claims but that the court may stay a mixed petition

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to allow the petitioner to exhaust the unexhausted claims.

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Lundy, 455 U.S. 509, 522 (1982); Rhines v. Weber, 544 U.S. 269, 277

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(2005).

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the date of the Order, a re-newed motion for a stay or inform the

Doc. #5.

In the

Rose v.

Thus, if Petitioner did not file, within fourteen days from

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Court that he wished to proceed only with his exhausted claims, his

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mixed petition would be dismissed without prejudice.

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Fourteen days have passed and Petitioner has not filed a

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re-newed motion for a stay or communicated with the Court in any

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manner.

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re-filing when his claims are exhausted.

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file.

Therefore, his petition is dismissed without prejudice to
The Clerk shall close the

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IT IS SO ORDERED.

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DATED

05/13/2013
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\HC.13\Lopez 13-649-HC Dis.wpd

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