UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 11, 2011
ESTABAN D. HERNANDEZ,
CATHY ALLISON, WARDEN,
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 17)
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS FOR LACK
OF EXHAUSTION (Doc. 14)
ORDER PERMITTING PETITIONER FIFTEEN DAYS TO WITHDRAW
UNEXHAUSTED CLAIMS AND PROCEED ON GROUND ONE OR HAVE
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On October 12, 2010, Respondent filed a motion to dismiss the petition, contending that the petition should be dismissed as a mixed petition because Grounds Two, Three, and Four were not exhausted. (Doc. 14). On December 2, 2010, the Magistrate Judge assigned to the case filed a Findings and Recommendations recommending that Respondent's motion to dismiss for unexhausted claims be granted. (Doc. 17). This 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, Petitioner has not filed objections.
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 are adopted to the extent that Petitioner be given thirty days to file an amended petition omitting the unexhausted claims;
2. Respondent's Motion to Dismiss for lack of exhaustion as to Grounds Two, Three, and Four (Doc. 14), is DENIED without prejudice;
3. Petitioner is granted thirty (30) days from the date of service of this order in which to file a motion to withdraw the unexhausted claims and proceed on the remaining claim, i.e., Ground One. If Petitioner fails to file such a motion within the time provided by this order, the Court will dismiss this action as a mixed petition containing unexhausted claims.
IT IS SO ORDERED.
CHIEF UNITED STATES DISTRICT JUDGE
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