The opinion of the court was delivered by: Christina A. Snyder United States District Judge
ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition, all of the records herein, and the Magistrate Judge's Report and Recommendation. The time for filing Objections to the Report and Recommendation has passed and no Objections have been received. Accordingly, the Court accepts and adopts the findings, conclusions and recommendations of the Magistrate Judge.
The Court notes that Petitioner filed a "Motion to Request a Stay" ("Motion for Stay") after the Report and Recommendation issued. The Court addresses Petitioner's request for a stay below.
In the Motion for Stay, Petitioner admits that his claims are unexhausted and seeks a stay of the First Amended Petition while he proceeds to exhaust in the state courts. (See Motion for Stay at 3) ("Petitioner takes notice that his petition is not fully exhausted."). However, the stay and abeyance procedure only applies to "mixed" petitions which contain both exhausted and unexhausted claims. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("District courts have the discretion to hold a mixed petition in abeyance pending exhaustion of the unexhausted claims. We decline to extend that rule to the situation where the original habeas petition contained only unexhausted claims . . . . Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to the petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust." (citation omitted)). Because none of Petitioner's claims are exhausted, the Court must dismiss the First Amended Petition. See, e.g., Coleman v. Thompson, 501 U.S. 722, 731, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991) ("This Court has long held that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted state remedies as to any of his federal claims.").
Accordingly, IT IS ORDERED THAT:
1. The First Amended Petition is DENIED and Judgment shall be entered dismissing this action without prejudice. Petitioner's Motion for Stay is DENIED.
2. The Clerk shall serve copies of this Order and the Judgment herein by United States mail on Petitioner at his current address of record.
© 1992-2010 VersusLaw ...