Felix v. Mayberg et al
Filing
37
ORDER granting motion to dismiss as to claim 2 by Judge Lucy H. Koh granting 31 Motion to Dismiss (lhklc2, COURT STAFF) (Filed on 8/26/2013)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
NORTHERN DISTRICT OF CALIFORNIA
9
SAN JOSE DIVISION
United States District Court
For the Northern District of California
10
11
SCOTT E. FELIX,
Petitioner,
12
v.
13
14
DR. S. MAYBERG,
Respondent.
15
16
17
)
)
)
)
)
)
)
)
)
)
)
No.: C 10-2823 LHK (PR)
ORDER GRANTING MOTION TO
DISMISS
Petitioner, who is civilly committed, seeks a writ of habeas corpus pursuant to 28 U.S.C.
18
§ 2254. In its order re-opening the case, the Court found that Petitioner has not exhausted the state
19
remedies for his second claim as required by § 2254(b)(1). ECF No. 22. The Court directed
20
Respondent to either file a motion to dismiss or expressly waive the exhaustion requirement of
21
§ 2254. Id. Respondent declines to waive the exhaustion requirement. ECF No. 33. Respondent
22
moves to dismiss on the grounds that the petition included claims that are not exhausted or
23
alternatively to dismiss only the unexhausted claim. ECF No. 33. In Petitioner’s response to
24
Respondent’s motion, Petitioner indicated his intent to dismiss the unexhausted claim. ECF No.
25
33.
26
A mixed petition is not fatal to a habeas action. “[Petitioners] who . . . submit mixed
27
petitions . . . are entitled to resubmit a petition with only exhausted claims or to exhaust the
28
remainder of their claims.” Rose v. Lundy, 455 U.S. 509, 520 (1982). “[D]istrict courts must
1
Case No.: C 10-2823 LHK (PR)
ORDER GRANTING MOTION TO DISMISS CLAIM 2
1
provide habeas litigants with the opportunity to amend their mixed petitions by striking
2
unexhausted claims as an alternative to suffering dismissal.” Anthony v. Cambra, 236 F.3d 568,
3
574 (9th Cir. 2000). Here, the parties agree that Petitioner has submitted a mixed petition. ECF
4
No. 31 at 5; ECF No. 33 at 2.
5
Because Petitioner has indicated his willingness to dismiss the unexhausted claim, the Court
6
GRANTS Respondent’s motion to dismiss as to the unexhausted claim only. The Court DENIES
7
Respondent’s alternative request to dismiss the entire petition. Petitioner may proceed with his
8
exhausted claims, specifically claims 1, 3, and 5.
9
CONCLUSION
United States District Court
For the Northern District of California
10
For the foregoing reasons, the Court orders as follows:
11
1.
Respondent’s motion to dismiss claim 2 – the unexhausted claim – is GRANTED.
12
2.
Respondent shall file with the Court and serve on Petitioner, within sixty days of the date
13
this order is filed, an answer conforming in all respects to Rule 5 of the Rules Governing Section
14
2254 Cases, showing cause why a writ of habeas corpus should not be granted. Respondent shall
15
file with the answer and serve on Petitioner a copy of all portions of the underlying record that
16
have been transcribed previously and that are relevant to a determination of the issues presented by
17
the petition. If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with
18
the Court and serving it on Respondent within thirty days of the date the answer is filed.
19
3.
20
communications with the Court must be served on Respondent by mailing a true copy of the
21
document to Respondent's counsel. Petitioner must keep the court and all parties informed of any
22
change of address by filing a separate paper captioned “Notice of Change of Address.” He must
23
comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of
24
this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
25
It is Petitioner's responsibility to prosecute this case. Petitioner is reminded that all
IT IS SO ORDERED.
26
27
Dated: August 26, 2013
_________________________________
LUCY H. KOH
United States District Judge
28
2
Case No.: C 10-2823 LHK (PR)
ORDER GRANTING MOTION TO DISMISS CLAIM 2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?