The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 33)
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS FOR LACK OF EXHAUSTION (Doc. 13)
ORDER PERMITTING PETITIONER FIFTEEN DAYS TO WITHDRAW UNEXHAUSTED GROUND SIX AND PROCEED ON ROUNDS ONE THROUGH FIVE OR HAVE PETITION DISMISSED
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On February 14, 2008, Respondent filed a motion to dismiss the petition, contending that the petition should be dismissed as a mixed petition because Ground Six in the instant petition was not exhausted in state court. (Doc. 13). Subsequently, Petitioner requested, and was granted, a stay of proceedings in order to exhaust Ground Six. (Docs. 12 & 19). On May 5, 2010, the Court issued an order lifting the stay of proceedings because of Petitioner's failure to keep the Court apprised of the status of his exhaustion efforts through regularly filed status reports. (Doc. 33). That order also contained Findings and Recommendations that Ground Six was not exhausted, that the petition was therefore a mixed petition, and that Respondent's motion to dismiss should be granted. (Id.). The Findings and Recommendations indicated that Petitioner would be given an opportunity to withdraw Ground Six and proceed on the remaining claims before the Court dismissed the petition outright as a mixed petition. The Findings and Recommendations was served on all parties and contained notice that any objections were to be filed within twenty days from the date of service of that order. To date, the parties have not filed any objections to the Findings and Recommendations.
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that the Magistrate Judge's Findings and Recommendations is supported by the record and proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed May 7, 2010 (Doc. 33), is ADOPTED IN FULL;
2. Respondent's Motion to Dismiss for lack of exhaustion as to Ground Six (Doc. 13), is GRANTED;
4. Petitioner is granted fifteen (15) days from the date of service of this order in which to file a motion to withdraw the unexhausted Ground Six and proceed on the remaining claims, i.e., Grounds One through Five. If Petitioner fails to file such a motion within the time provided by this order, the Court will enter an order dismissing the petition as a mixed petition containing unexhausted claims and enter judgment accordingly.
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