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Glenn Cornwell, Jr v. Death Penalty Case Warden

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


January 6, 2012

GLENN CORNWELL, JR., PETITIONER,
v.
DEATH PENALTY CASE WARDEN, SAN QUENTIN STATE PRISON, RESPONDENT.

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

ORDER

In findings and recommendations issued on October 25, 2011, the undersigned found several claims in the first amended petition unexhausted. (Dkt. No. 84.) On December 15, 2011, the district judge adopted the findings and recommendations in full. (Dkt. Nos. 85 and 87.) Since a federal court may not adjudicate a mixed petition, the next step in these proceedings is addressing the presence of unexhausted claims in the first amended petition. See Rose v. Lundy, 455 U.S. 509 (1982).

Within ten days of the filed date of this order, petitioner shall inform the court whether he wishes to: (1) dismiss the first amended petition under Rose; (2) file a second amended petition without the unexhausted claims, as described in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007); or (3) file a motion for stay and abeyance under Rhines v. Weber, 544 U.S. 269 (2005). Within five days of petitioner's filing, respondent shall file a response.

IT IS SO ORDERED.

20120106

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