Aviles v. Dickhaut

Filing 31

Judge F. Dennis Saylor, IV: ORDER entered. ORDER VACATING DISMISSAL. 30 Motion to dismiss "exhausted issues" is GRANTED.(Cicolini, Pietro) Modified on 5/16/2013 to add ruling on motion (Cicolini, Pietro).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ANGEL AVILES,
Petitioner,
v.
THOMAS DICKHAUT,
Respondent.

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Civil Action No.
12-cv-40017-FDS

ORDER VACATING DISMISSAL
SAYLOR, J.
This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 by a person in
state custody. On April 10, 2013, the Court issued a memorandum and order finding that
petitioner Aviles had failed to exhaust his available state remedies as to some of the claims
contained in the petition. Accordingly, the Court ordered that respondent’s motion to dismiss the
petition would be granted unless, within 30 days, petitioner filed a request to dismiss the
unexhausted claims in his petition and proceed on the merits of the exhausted claims. On May
15, having received no such request from petitioner, this Court granted the respondent’s motion
to dismiss. However, the Court has recently been made aware of a letter from petitioner received
by the clerk on May 15, and dated May 9, requesting that the unexhausted claims in his petition
be dismissed so that he may proceed on the merits of the exhausted claims.
Filings by pro se prisoners are liberally construed and are generally held to less stringent
standards than formal pleadings by a lawyer. See Estelle v. Gamble, 429 U.S. 97, 106 (1976);
Voravongsa v. Wall, 349 F.3d 1, 8 (1st Cir. 2003). Viewing petitioner’s letter in this light,
because it was received by the Court within a very short period of time after the proscribed 30-

day period had expired, the Court will treat it as timely. Accordingly, the Court’s order granting
respondent’s motion to dismiss the petition, and the subsequent dismissal order will be vacated.
The unexhausted claims in the petition will be dismissed, and petitioner will be permitted to
proceed on the merits of his exhausted claims only.
For the foregoing reasons, the Court’s order granting respondent’s motion to dismiss the
petition, and the Court’s order dismissing the case are VACATED; and the unexhausted claims
in the petition are DISMISSED.

So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: May 16, 2013

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