IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 11, 2011
JEFFREY A. PATE, PETITIONER,
WARDEN MARTELL, RESPONDENT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is state prisoner, proceeding without counsel, with a habeas corpus petition pursuant to 28 U.S.C. § 2254. This action is proceeding on the original petition filed June 11, 2010, which raises one claim: ineffective assistance of appellate counsel. In the answer filed March 24, 2011, respondent argues that this claim is not exhausted but should nevertheless be denied on the merits. See 28 U.S.C. § 2254(a)(2) (a habeas petition may be denied on the merits, notwithstanding the failure of the applicant to exhaust state court remedies.)
In the reply to the answer filed June 14, 2011, petitioner requested that this action be stayed so that he could return to state court and exhaust his unexhausted claims. On July 14, 2011, the undersigned issued an order informing petitioner that the court did not have the authority to stay a petition containing only unexhausted claims. See Rhines v. Weber, 544 U.S. 268, 277 (2005). In this order, the undersigned found that after reviewing the record, petitioner's ineffective assistance of appellate counsel claim was not exhausted. The undersigned also noted that petitioner had other exhausted claims.
Because the petition contained only an unexhausted claim, the
undersigned advised petitioner that he had two options. Petitioner
could either proceed with the instant action and his unexhausted
claim, or he could voluntarily dismiss this action.*fn1
The July 14, 2011 order advised petitioner that if he
dismissed this action and returned to state court, he should be
mindful of the statute of limitations which may bar any future habeas
petition filed in federal court. See 28 U.S.C. § 2244(d)(1) (one year
statute of limitations applies to habeas corpus petitions filed
pursuant to 28 U.S.C. § 2254.)
On August 5, 2011, petitioner filed a pleading stating that he wished to voluntarily dismiss this action so that he may return to state court and exhaust other claims. Accordingly, IT IS HEREBY ORDERED that this action is dismissed without prejudice. Fed. R. Civ. P. 41(a); see also Rule 11, Rules Governing Habeas Corpus Cases Under Section 2254.