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Hayes v. Yates

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


June 29, 2006

JEFFERY MICHAEL HAYES, PETITIONER,
v.
JAMES S. YATES, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Charles R. Breyer United States District Judge

ORDER OF DISMISSAL

Per order filed on May 1, 2006, the court granted respondent's motion to dismiss on the ground that petitioner only exhausted claims 1 through 4 of the 15 claims he raised in his petition for a writ of habeas corpus under 28 U.S.C. § 2254.

Pursuant to the law of the circuit, the court instructed petitioner to inform the court in writing, within 30 days, whether he wishes to (1) withdraw his unexhausted claims and proceed only on his exhausted claims, or (2) dismiss the entire mixed petition and return to federal court with a new petition once all claims are exhausted. (The court also noted that petitioner may be able to seek a stay of these proceedings if he can show that there was good cause for his failure to exhaust his unexhausted claims in state court, and that the claims are potentially meritorious.) The court made clear that failure to respond within the designated time will result in the dismissal of the entire mixed petition without prejudice to filing a new federal petition containing only exhausted claims.

More than 30 days have elapsed and petitioner has not responded to the court's order or even sought an extension of time to do so. The petition is DISMISSED without prejudice to filing a new federal petition containing only exhausted claims. The clerk shall enter judgment in accordance with this order and close the file.

SO ORDERED.

20060629

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