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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1 2 3 4 5 6 7 8 NOT FOR CITATION 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 JAMES EDWARD THOMAS, 12 Petitioner, 13 vs. 14 MATTHEW C. KRAMER, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) No. C 10-0591 LHK (PR) ORDER OF DISMISSAL 17 Petitioner, a state prisoner proceeding pro se, filed an amended petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. On June 6, 2011, the Court granted Respondent’s motion 19 to dismiss for failure to exhaust state remedies. On July 5, 2011, the Court denied Petitioner’s 20 motions to stay because he did not qualify for a stay. The Court gave Petitioner an opportunity 21 to decide whether he wanted to dismiss the unexhausted claim and go forward with only the 22 exhausted ones, or dismiss the entire action and return to state court to exhaust all his claims 23 before filing a new federal petition. The Court warned Petitioner that he must make his election 24 by August 4, 2011, or face dismissal of the entire action. 25 On July 20, 2011, Petitioner filed a letter with the Court explaining why he initially chose 26 to try to stay the action while he returned to state court to exhaust his claims. Petitioner made no 27 attempt to elect one of the two options he had, and instead, informed the Court that he had filed a 28 Order of Dismissal P:\pro-se\sj.lhk\hc.10\Thomas591dis2 1 2 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 3 Petitioner an extension of time to express his choice of whether he wanted to dismiss the 4 unexhausted claim and proceed with only the exhausted claims, or dismiss the entire action and 5 return to state court to exhaust all his claims before re-filing in federal court. The Court warned 6 Petitioner that, by October 11, 2011, he must choose one of the available options, or suffer 7 dismissal of this action. 8 9 10 11 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 12 LUCY H. KOH United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order of Dismissal P:\pro-se\sj.lhk\hc.10\Thomas591dis2 2

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