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Stuckey v. Warden of Soledad

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


July 20, 2009

GARY W. STUCKEY, PETITIONER,
v.
WARDEN OF SOLEDAD, RESPONDENTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 18, 2009, the court ordered petitioner to show cause why this action should not be dismissed for failure to exhaust state court remedies. Petitioner responded on July 6, 2009, and indicated that his case should be stayed or dismissed without prejudice so he may properly exhaust state court remedies. However, the case cannot be stayed because none of the claims herein are exhausted.

Petitioner is cautioned that the habeas corpus statute imposes a one year statute of limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one year period will start to run on the date on which the state court judgment became final by the conclusion of direct review or the expiration of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d).

Good cause appearing, petitioner's request to dismiss will be granted.

Accordingly, IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 41(a) (request for dismissal self-executing) the case has been dismissed; see also Rule 11, Rules Governing Habeas Corpus Cases Under Section 2254.

20090720

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