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April 22, 1992

DANIEL VASQUEZ, Warden of San Quentin State Prison, Defendant.


The opinion of the court was delivered by: J. P. VUKASIN, JR.


Petitioner's Motion to Alter or Amend the Judgment was scheduled to be heard on April 23, 1992. After a review of the briefs, this court considered it appropriate to submit the motion on the pleadings pursuant to Local Rule 220-1, and now DENIES the motion.


 Petitioner Fernando Eros Caro is a state prisoner, sentenced to death, who filed a petition for writ of habeas corpus on April 27, 1990 in this district. Because the petition contained both exhausted and unexhausted claims, another judge of this district stayed the federal proceedings to allow petitioner to pursue his available state court remedies, and stayed petitioner's execution until final disposition of the case.

 By Order dated March 16, 1992, this Court vacated and set aside the stay of execution, and dismissed the habeas corpus petition without prejudice, due to petitioner's total failure, for nearly two years, to make any effort to pursue his state court remedies. Petitioner immediately filed this motion to alter or amend the judgment, pursuant to Rule 59(e), Fed.R.Civ.P., requesting, in essence, that this court vacate its Order of dismissal, reinstate the stay, and correct certain language in the order which petitioner dislikes. This court refuses to do so.


 Federal Rule of Civil Procedure 59(e) authorizes this Court to alter or amend its judgment in order to correct material errors of fact or law therein. Upon review of the March 16, 1992 Order, and after careful consideration of the arguments raised by the parties in their briefs, this Court finds no error of fact or law which would require the result which petitioner seeks. This Court is completely satisfied that the Order is well grounded in fact and warranted by existing law. Petitioner's arguments to the contrary are completely without merit.

 Petitioner argues that in order to "avoid a manifest injustice" the stay of execution should remain in place and the petition should not be dismissed because "at no time was Mr. Caro given any notice by this Court that he was proceeding too slowly in state court, . . . [and] no deadline was ever set by this Court for petitioner to complete his state court proceedings." Thus, petitioner argues, vacating the stay and dismissal of the petition "with absolutely no prior warning is a clear violation of Mr. Caro's due process rights."

 So "clear" is the due process violation that petitioner cites no case in support of his argument. Rather, petitioner merely rehashes arguments raised in opposition to respondent's motion to dismiss in an attempt to excuse the delay; such arguments have already been addressed and rejected by this Court. Additionally, petitioner ignores the fact that in his original ex parte application for a stay in April of 1990, petitioner indicated that he would "promptly" seek state court relief. As the record in this case conclusively demonstrates, petitioner's actions were anything but prompt. *fn1"

 Petitioner's further statement that he "justifiably assumed that he could proceed to take whatever time was necessary to exhaust state remedies" all but concedes the fact that he did not act with the intention of ensuring expeditious resolution of this action. Petitioner has not, and can not argue that this Court lacked authority to vacate the stay and dismiss the petition. Although the Local Rules of this Court, permit the issuance of a stay, this Court has a "duty to take all steps necessary to ensure prompt resolution" of a habeas petition once a stay of execution is issued. In re James Blodgett, 1992 WL 2559 (U.S. 1/13/92). Moreover, Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), mandates dismissal of federal habeas petitions, such as Mr. Caro's, containing both unexhausted and exhausted claims. See id. at 523.

 Petitioner also requests that this Court alter or amend its Order by striking the language which implied that petitioner's inaction "resulted in a violent abuse of the 'great writ'" and add language to the effect that, after exhaustion of state remedies, petitioner may re-file his petition and it will not be considered a successor petition or an abuse of the writ under McCleskey v. Zant, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991). Such alteration or amendment is unnecessary. Petitioner's federal habeas petition was explicitly "DISMISSED WITHOUT PREJUDICE", and thus, any renewed petition would not be considered a successive petition within the meaning of Rule 9(b) of the Habeas Corpus Rules. See, Rules following 28 U.S.C. ยง 2254; McCleskey v. Zant, 113 L. Ed. 2d 517, 111 S. Ct. 1454, 1456-67 (1991).

 Petitioner also takes umbrage with this Court's statement that "respondent should petition, forthwith, the appropriate state court for a new execution date," and requests that such language be stricken. However, the Court's Order does not mandate such action, and thus, even if improper as petitioner argues, it is merely a suggestion which adds nothing of import and cannot be viewed as error such that it should be stricken.

 Accordingly, petitioner's motion to alter or amend the judgment is DENIED.


 DATED: April 22, 1992



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