Guevara v. Sullivan et al

Filing 10

ORDER OF DISMISSAL. Signed by Judge Vince Chhabria on 9/11/2018. The deputy clerk hereby certifies that on 9/11/2018 a copy of this order was served by sending it via first-class mail to the address of each non-CM/ECF user listed on the Notice of Electronic Filing. (knm, COURT STAFF) (Filed on 9/11/2018)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

JOSE TIMOTEO GUEVARA,

Case No. 18-cv-03211-VC (PR)

Petitioner,
ORDER OF DISMISSAL

v.
SULLIVAN, et al.,
Respondent.

Petitioner Jose Timoteo Guevara, a state inmate, filed this pro se petition for a writ of
habeas corpus under 28 U.S.C. § 2254 and moved for leave to proceed in forma pauperis. On
July 2, 2018, the Court issued an order denying the motion to proceed in forma pauperis because
Guevara had sufficient funds in his prison trust account to pay the $5.00 filing fee. The Court
also found that his claims were unexhausted. The Court ordered Guevara to pay the $5.00 filing
fee and to notify the Court how he wished to proceed with his unexhausted claims, within 28
days from the date of the Order. The Court gave Guevara two options about proceeding with his
unexhausted claims: (1) dismiss the action and return to state court to exhaust all his claims
before returning to federal court with his newly exhausted claims in a new petition; or (2) move
for a stay of the petition while he exhausted state court remedies. If Guevara did not choose one
of the two options or pay the $5.00 filing fee within 28 days, the Court would assume he chose
Option (1) and the action would be dismissed without prejudice to filing a new petition with
unexhausted claims.
More than 28 days have passed, and although Guevara has paid the filing fee, he has not

notified the Court about how he wishes to proceed with his unexhausted claims. Therefore, the
Court assumes he chose Option 1. This petition is dismissed without prejudice to Guevara filing
a new petition when he exhausts his claims.
The Clerk of the Court shall enter a separate judgment and close the file.
IT IS SO ORDERED.
Dated: September 11, 2018
______________________________________
VINCE CHHABRIA
United States District Judge

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