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)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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SCOTT E. FELIX,
Petitioner,

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v.

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DR. S. MAYBERG,
Respondent.

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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.

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§ 2254. In its order re-opening the case, the Court found that Petitioner has not exhausted the state

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remedies for his second claim as required by § 2254(b)(1). ECF No. 22. The Court directed

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Respondent to either file a motion to dismiss or expressly waive the exhaustion requirement of

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§ 2254. Id. Respondent declines to waive the exhaustion requirement. ECF No. 33. Respondent

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moves to dismiss on the grounds that the petition included claims that are not exhausted or

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alternatively to dismiss only the unexhausted claim. ECF No. 33. In Petitioner’s response to

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Respondent’s motion, Petitioner indicated his intent to dismiss the unexhausted claim. ECF No.

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33.

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A mixed petition is not fatal to a habeas action. “[Petitioners] who . . . submit mixed

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petitions . . . are entitled to resubmit a petition with only exhausted claims or to exhaust the

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remainder of their claims.” Rose v. Lundy, 455 U.S. 509, 520 (1982). “[D]istrict courts must
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Case No.: C 10-2823 LHK (PR)
ORDER GRANTING MOTION TO DISMISS CLAIM 2

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provide habeas litigants with the opportunity to amend their mixed petitions by striking

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unexhausted claims as an alternative to suffering dismissal.” Anthony v. Cambra, 236 F.3d 568,

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574 (9th Cir. 2000). Here, the parties agree that Petitioner has submitted a mixed petition. ECF

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No. 31 at 5; ECF No. 33 at 2.

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Because Petitioner has indicated his willingness to dismiss the unexhausted claim, the Court

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GRANTS Respondent’s motion to dismiss as to the unexhausted claim only. The Court DENIES

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Respondent’s alternative request to dismiss the entire petition. Petitioner may proceed with his

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exhausted claims, specifically claims 1, 3, and 5.

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CONCLUSION

United States District Court
For the Northern District of California

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For the foregoing reasons, the Court orders as follows:

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1.

Respondent’s motion to dismiss claim 2 – the unexhausted claim – is GRANTED.

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2.

Respondent shall file with the Court and serve on Petitioner, within sixty days of the date

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this order is filed, an answer conforming in all respects to Rule 5 of the Rules Governing Section

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2254 Cases, showing cause why a writ of habeas corpus should not be granted. Respondent shall

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file with the answer and serve on Petitioner a copy of all portions of the underlying record that

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have been transcribed previously and that are relevant to a determination of the issues presented by

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the petition. If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with

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the Court and serving it on Respondent within thirty days of the date the answer is filed.

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3.

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communications with the Court must be served on Respondent by mailing a true copy of the

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document to Respondent's counsel. Petitioner must keep the court and all parties informed of any

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change of address by filing a separate paper captioned “Notice of Change of Address.” He must

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comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of

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this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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It is Petitioner's responsibility to prosecute this case. Petitioner is reminded that all

IT IS SO ORDERED.

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Dated: August 26, 2013

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LUCY H. KOH
United States District Judge

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Case No.: C 10-2823 LHK (PR)
ORDER GRANTING MOTION TO DISMISS CLAIM 2