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Nicholas Patrick v. Alfonso Fillon

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 23, 2011

NICHOLAS PATRICK, PETITIONER,
v.
ALFONSO FILLON, RESPONDENT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Petitioner is a state prisoner proceeding without counsel. On November 15, 2011, the court granted in part respondent's motion to dismiss petitioner's application for a writ of habeas corpus, on the ground that the petition improperly contains unexhausted claims. (Dkt. No. 17.) The court granted petitioner leave to proceed, within thirty days, in one of the following ways: (1) file a motion to "stay and abey" the petition, while petitioner exhausts his unexhausted claims in state court; (2) file an amended federal habeas petition that contains only exhausted claims (or proceed with the current federal habeas petition, forfeiting the unexhausted claims contained therein); or (3) request dismissal of this action.

Petitioner timely responded, stating in full:

I'm requesting this court to stay [the] instant petition and exclude[] the unexhausted claims. Please proceed only with the exhausted claims.

In other words, petitioner appears to pursue both the first and second options identified by the court; however, petitioner may not do both.

If petitioner wishes to stay his federal petition in its entirety, for the purpose of timely exhausting state court remedies as to petitioner's currently unexhausted claims, he must say so. However, if petitioner seeks to proceed with his federal petition, on only his exhausted claims, thereby forfeiting his unexhausted claims (Claim 12, and Claim 13 (to the extent it includes Claim 12)), he must so inform the court; alternatively, petitioner may file an amended federal petition that does not contain Claim 12, or Claim 13 (to the extent it includes Claim 12)).

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner shall, within thirty (30) days after service of this order, inform the court in a written statement whether he wishes to:

a. Stay the current federal petition in its entirety, so that petitioner may seek to timely exhaust, in the state courts, his currently unexhausted claims; OR

b. Proceed now in federal court, by:

i. Proceeding on the currently-filed petition, thereby forfeiting unexhausted Claim 12 and Claim 13 (to the extent it includes Claim 12);

OR

ii. Filing an amended federal habeas petition that contains only petitioner's exhausted claims.

2. The Clerk of Court is directed to again send petitioner the form for filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

SO ORDERED.

20111223

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