The opinion of the court was delivered by: Gary A. Feess United States District Judge
On March 23, 2011, Petitioner filed a petition for writ of habeas corpus. On June 21, 2011, Respondent filed a motion to dismiss. On January 4, 2012, the Court accepted the findings and recommendation of the magistrate judge, and granted in part Respondent's motion to dismiss to the extent that Grounds 1, 2, and 6 are unexhausted. (Dkt. No. 14.) The Court referred the matter to the magistrate judge for further proceedings. (Id.)
On January 9, 2012, the magistrate judge issued a minute order giving Petitioner four options. (Dkt. No. 15.) Option Three was to dismiss unexhausted Grounds 1, 2, and 6, and to proceed only on the remaining exhausted grounds. (Id. at 3.) Option Four was to dismiss the entire petition without prejudice and return to state court to exhaust Grounds 1, 2, and 6. (Id. at 3-4.)
On February 13, 2012, Petitioner filed a document entitled "Motion to dismiss without prejudice or alternative to waive exhaustion" ("Motion"). Although Petitioner stated he had chosen Option Four (Motion at 1), he also stated he was "unable to seek exhaustion on unexhausted state claims" (id. at 3). The magistrate judge construed the Motion to choose Option Three. (Dkt. No. 18.) However, the magistrate judge advised Petitioner that if he wished to dismiss the entire petition without prejudice, he must file a response by March 6, 2012, entitled "Notice of Dismissal" in which he clearly stated he wished to dismiss the entire petition without prejudice. (Id.) The magistrate judge also admonished Petitioner that if he failed to timely respond, she would order an answer to the petition based on the exhausted claims. (Id.) Petitioner did not respond.
Accordingly, Grounds 1, 2, and 6 of the petition are DISMISSED without prejudice. Respondent is ORDERED to file an answer to the petition within 45 days of entry of this order addressing only the exhausted grounds. The provisions of the magistrate judge's April 22, 2011 scheduling order (Dkt. No. 6) remain in effect.
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