Robinson v. Miller

Filing 37

ORDER DISMISSING UNEXHAUSTED CLAIMS; ORDER TO SHOW CAUSE Dispositive Motion due by 2/19/2013. Habeas Answer due by 2/19/2013. Traverse due by 3/21/2013.. Signed by Judge Lucy H. Koh on 11/21/12. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 11/21/2012)

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NOT FOR CITATION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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LENORA ROBINSON,
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Petitioner,
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v.
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WARDEN W. MILLER,
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Respondent.
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No. C 11-1339 LHK (PR)
ORDER DISMISSING
UNEXHAUSTED CLAIMS; ORDER
TO SHOW CAUSE

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Petitioner, a state prisoner proceeding pro se, filed a second amended petition for writ of
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habeas corpus (“SAP”) pursuant to 28 U.S.C. § 2254. In the SAP, this Court found that
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Petitioner presented ten cognizable claims: (1) trial counsel rendered ineffective assistance; (2)
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there was insufficient evidence to support her convictions; (3) the prosecutor committed
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misconduct during opening and closing arguments; (4) the prosecutor withheld exculpatory
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evidence; (5) Petitioner was denied the right to hire her own counsel of choice; (6) the trial court
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improperly denied her motion to substitute counsel; (7) the pretrial identification procedure was
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unduly suggestive; (8) the trial court erred in not conducting a competency hearing; (9) appellate
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counsel rendered ineffective assistance; and (10) cumulative errors were prejudicial.
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On August 3, 2012, the Court granted in part and denied in part Respondent’s motion to
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dismiss for failure to exhaust state remedies, and directed Petitioner to choose from three options
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Order Dismissing Unexhausted Claims; Order to Show Cause
G:\PRO-SE\SJ.LHK\HC.11\Robinson339osc2.wpd

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how she would like to proceed. On August 24, 2012, Petitioner filed a motion to stay the SAP

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and hold the action in abeyance. On October 5, 2012, the Court denied Petitioner’s motion to

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stay. In that order, the Court warned Petitioner that if she failed to file a new motion to stay

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along with a third amended petition within thirty days, the Court would automatically dismiss

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the unexhausted claims, as found in its August 3, 2012 order. (Doc. No. 35.)

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More than thirty days have passed, and Petitioner has not complied with the Court’s most

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recent order. Accordingly, the Court DISMISSES Claims 1-1, 1-2, 1-4, 1-5, 1-11, 1-13, 1-15, 1-

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

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

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted on the

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remaining claims. Respondent shall file with the answer and serve on Petitioner a copy of all

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portions of the underlying state criminal record that have been transcribed previously and that

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are relevant to a determination of the issues presented by the petition.

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If Petitioner wishes to respond to the answer, she shall do so by filing a traverse with the
Court and serving it on Respondent within thirty days of the date the answer is filed.
Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as

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set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases

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within ninety days of the date this order is filed. If Respondent files such a motion, Petitioner

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shall file with the Court and serve on Respondent an opposition or statement of non-opposition

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within twenty-eight days of the date the motion is filed, and Respondent shall file with the court

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and serve on Petitioner a reply within fourteen days of the date any opposition is filed.

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IT IS SO ORDERED.

11/21/12
DATED: _______________
LUCY H. KOH
United States District Judge

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Order Dismissing Unexhausted Claims; Order to Show Cause
G:\PRO-SE\SJ.LHK\HC.11\Robinson339osc2.wpd

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