UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 14, 2010
CARLOS ALBERTO MUNOZ, PETITIONER,
PEOPLE OF CALIFORNIA, RESPONDENT.
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner filed the instant petition on February 9, 2010. (Court Doc. 1.) On March 3, 2010, the Court issued an order to show cause why the petition should not be dismissed for lack of jurisdiction, namely failure to name a proper respondent and failure to exhaust the state court remedies. (Court Doc. 3.)
On April 12, 2010, Petitioner filed a motion to amend the petition to name a proper respondent and a motion requesting permission to return to state court to exhaust the unexhausted claims. (Court Docs. 4, 5.) In the latter motion, Petitioner states that he inadvertently forwarded the instant petition to this Court instead of to the California Court of Appeal Fifth Appellate District and requests permission to return to state court to exhaust his unexhausted claims. (Motion, at 2.) Because the instant petition contains only unexhausted claims, Petitioner's motion shall be granted and the instant petition for writ of habeas corpus will be dismissed without prejudice.
Accordingly, it is HEREBY RECOMMENDED that:
1. Petitioner's motion to dismiss the instant petition is GRANTED; and
2. The instant petition for writ of habeas corpus is DISMISSED without prejudice.
IT IS SO ORDERED.
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