Cesar Rodriguez v. John F. Salazar

Filing 33

ORDER OF DISMISSAL. Signed by Judge Claudia Wilken on 11/22/2010. (ndr, COURT STAFF) (Filed on 11/22/2010)

Cesar Rodriguez v. John F. Salazar

Doc. 33

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. CESAR RODRIGUEZ,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. 08-03830 CW ORDER OF DISMISSAL

Petitioner,

JIM MACDONALD, Warden, Respondent. /

Petitioner, a state prisoner, filed this pro se petition for a writ of habeas corpus challenging the validity of his state conviction. Respondent filed an answer, in which he argued that

the petition should be dismissed for failure to exhaust. Petitioner filed a traverse. In an Order dated November 2, 2010, the Court found that Petitioner filed a "mixed petition" composed of one exhausted claim and four unexhausted claims. A district court must dismiss "mixed See

petitions" containing both exhausted and unexhausted claims.

Rose v. Lundy, 455 U.S. 509, 522 (1982) (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). Petitioner was directed to respond within fourteen

days and "submit a request to dismiss his unexhausted claims and proceed with his exhausted Apprendi claim or a request to stay the petition while he returns to state court to exhaust his unexhausted claims." (Nov. 2, 2010 Order at 6.) The Court further stated: "If

he does neither, the Court will dismiss the petition for failure to

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

exhaust State judicial remedies."

(Id.)

Fourteen days have passed, and Petitioner has not responded to the Court's November 2, 2010 Order. Accordingly, the petition is The

DISMISSED for failure to exhaust state judicial remedies.

Clerk of the Court shall terminate all pending motions and close the file. IT IS SO ORDERED. Dated: 11/22/2010 CLAUDIA WILKEN United States District Judge

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CESAR RODRIGUEZ, Plaintiff, v. JOHN F SALAZAR et al, Defendant.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV08-03830 CW CERTIFICATE OF SERVICE

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on November 22, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Cesar Rodriguez F-30844 Suni A202 La Palma Correctional Center 5501 N. LaPalma Rd. Eloy, AZ 85131 Dated: November 22, 2010 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk

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