Thomas v. Walker

Filing 48

ORDER OF DISMISSAL. Signed by Judge Lucy H. Koh on 11/4/11. (Attachments: # 1 certificate of mailing)(mpb, COURT STAFF) (Filed on 11/9/2011)

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JAMES EDWARD THOMAS,
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Petitioner,
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vs.
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MATTHEW C. KRAMER,
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Respondent.
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No. C 10-0591 LHK (PR)
ORDER OF DISMISSAL

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Petitioner, a state prisoner proceeding pro se, filed an amended petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. On June 6, 2011, the Court granted Respondent’s motion
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to dismiss for failure to exhaust state remedies. On July 5, 2011, the Court denied Petitioner’s
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motions to stay because he did not qualify for a stay. The Court gave Petitioner an opportunity
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to decide whether he wanted to dismiss the unexhausted claim and go forward with only the
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exhausted ones, or dismiss the entire action and return to state court to exhaust all his claims
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before filing a new federal petition. The Court warned Petitioner that he must make his election
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by August 4, 2011, or face dismissal of the entire action.
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On July 20, 2011, Petitioner filed a letter with the Court explaining why he initially chose
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to try to stay the action while he returned to state court to exhaust his claims. Petitioner made no
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attempt to elect one of the two options he had, and instead, informed the Court that he had filed a
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Order of Dismissal
P:\pro-se\sj.lhk\hc.10\Thomas591dis2

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petition in state court in an attempt to exhaust his unexhausted claim.
Out of an abundance of caution, on September 19, 2011, the Court sua sponte granted

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Petitioner an extension of time to express his choice of whether he wanted to dismiss the

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unexhausted claim and proceed with only the exhausted claims, or dismiss the entire action and

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return to state court to exhaust all his claims before re-filing in federal court. The Court warned

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Petitioner that, by October 11, 2011, he must choose one of the available options, or suffer

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dismissal of this action.

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To date, the Court has not received any further communication from Petitioner.
Accordingly, this action is DISMISSED without prejudice.
IT IS SO ORDERED.
DATED: _______________
11/4/11

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LUCY H. KOH
United States District Judge

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Order of Dismissal
P:\pro-se\sj.lhk\hc.10\Thomas591dis2

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