Hughes v. Marshall

Filing 15

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 1/27/12. (lrc, COURT STAFF) (Filed on 1/30/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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NICK HUGHES,

) No. C 11-01185 SBA (PR)
)
Petitioner,
) ORDER OF DISMISSAL
v.
)
)
JOHN MARSHALL, Warden,
)
)
Respondent.
)
_____________________________________ )

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For the Northern District of California

United States District Court

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Petitioner Nick Hughes, a state prisoner, filed the instant pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
In an Order dated December 20, 2011, the Court granted Respondent's motion to dismiss

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petition upon concluding that the petition was mixed, that is, that it contained both exhausted and

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unexhausted issues. The general rule is that a federal district court must dismiss a federal habeas

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petition containing any claim as to which state remedies have not been exhausted. See Rose v.

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Lundy, 455 U.S. 509, 522 (1982). However, instead of an outright dismissal of the action, the Court

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allowed Petitioner to choose whether he wanted to elect from three choices, namely to dismiss the

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unexhausted issues only, voluntarily dismiss the entire petition, or ask for a stay. Petitioner was

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instructed to notify the Court of his choice within thirty days and that his failure to do so will result

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in the dismissal of his petition.

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More that thirty days have passed, and Petitioner has not responded to the Court's December
2011 Order. This petition therefore is dismissed as mixed. Accordingly, this action is DISMISSED
without prejudice to filing a new federal habeas action containing a petition with only exhausted
claims. The Court has rendered its final decision on this matter; therefore, this Order
TERMINATES Petitioner's case. The Clerk of the Court shall terminate all pending motions and

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close the file.
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IT IS SO ORDERED.
Dated: _1/27/12

P:\PRO-SE\SBA\HC.11\Hughes1185.dismiss-NOelection.frm

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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NICK R HUGHES,
Case Number: CV11-01185 SBA

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Plaintiff,
CERTIFICATE OF SERVICE

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v.
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JOHN MARSHALL et al,

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Defendant.

For the Northern District of California

United States District Court

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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 January 30, 2012, 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.

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Nick R. Hughes V-59310
California Men's Colony
P.O. Box 8101
San Luis Obispo, CA 93409

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Dated: January 30, 2012
Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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P:\PRO-SE\SBA\HC.11\Hughes1185.dismiss-NOelection.frm

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