Cunningham v. Warden

Filing 10

ORDER GRANTING PETITIONER'S REQUEST TO DISMISS UNEXHAUSTED CLAIMS; ORDER TO SHOW CAUSE. Signed by Judge Lucy H. Koh on 10/27/11. (Attachments: # 1 certificate of mailing)(mpb, COURT STAFF) (Filed on 10/27/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER J. CUNNINGHAM,
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Petitioner,
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v.
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DOMINGO URIBE, JR., Warden,
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Respondent.
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No. C 10-5371 LHK (PR)
ORDER GRANTING
PETITIONER’S REQUEST TO
DISMISS UNEXHAUSTED
CLAIMS; ORDER TO SHOW
CAUSE

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Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. On October 11, 2011, the Court granted Respondent’s

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motion to dismiss for failure to exhaust state remedies, and required Petitioner to elect how he

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wanted to resolve the issue of his unexhausted claims in this Court by: (1) dismissing the

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unexhausted claims (Claims 5-7), and going forward with only the remaining exhausted claims

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(Claims 1-4); (2) terminating this habeas action and then completing the exhaustion of his

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unexhausted claims before filing a new federal petition presenting all of his claims; or (3)

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requesting a stay of the instant habeas proceedings while he exhausted his unexhausted claims in

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the California Supreme Court, and then filing a response with this Court within thirty days.

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On October 17, 2011, Petitioner filed a notice, electing to proceed with only the

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exhausted claims, Claims 1-4, and dismissing the unexhausted claims, Claims 5-7, in the instant

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petition.
Order Granting Petitioner’s Request to Dismiss Unexhausted Claims; Order to Show Cause
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Accordingly, Petitioner’s request to continue with only the exhausted claims and dismiss

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Claims 5-7 is GRANTED. The Court will renew its order to show cause to Respondent as to

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why the petition should not be granted as to the remaining four claims: (1) the trial court

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violated his right to confront and cross-examine the victim; (2) there was insufficient evidence of

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identity to convict him; (3) the trial court improperly admitted the victim’s prior statements on

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identity; and (4) the trial court improperly instructed the jury on how much weight to give

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identification evidence.

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CONCLUSION

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1.

Petitioner’s request to continue to proceed with only the exhausted claims and

dismiss Claims 5-7 is GRANTED.

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2.

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

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days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be

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granted. Respondent shall file with the answer and serve on Petitioner a copy of all portions of

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the state trial record that have been transcribed previously, and that are relevant to a

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determination of the issues presented by the petition.

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If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
court and serving it on Respondent within thirty days of his receipt of the answer.

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3.

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

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all 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

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

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must comply with the Court’s orders in a timely fashion. Failure to do so may result in the

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dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure

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41(b).

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Dated:

IT IS SO ORDERED.
10/27/11
LUCY H. KOH
United States District Judge

Order Granting Petitioner’s Request to Dismiss Unexhausted Claims; Order to Show Cause
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