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Ulices Aguilar v. Matthew Cate

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 21, 2012

ULICES AGUILAR,
PETITIONER,
v.
MATTHEW CATE, CDCR,
RESPONDENT.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DIRECTING THE CLERK TO RE-SERVE THE COURT'S ORDER (DOC. 9)

ORDER GRANTING PETITIONER TEN SEC. OF THE (10) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER TO WITHDRAW PETITIONER'S UNEXHAUSTED CLAIMS AND SEEK A KELLY STAY INFORMATIONAL ORDER TO PETITIONER CONCERNING DISMISSAL IF UNEXHAUSTED CLAIMS ARE NOT TIMELY WITHDRAWN

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on February 1, 2012 (doc. 6). Pending before the Court is Petitioner's "NOTICE OF DELAY," filed on May 18, 2012.

I. Background

On January 26, 2012, the Court issued an order to Petitioner to show cause why the petition should not be dismissed for failure to exhaust state court remedies as to some of the claims alleged in the petition. *fn1 (Doc. 4.) In response, on February 6, 2012, Petitioner filed a motion for stay and abeyance of the petition. However, Petitioner did not inform the Court as to which of his claims he had exhausted state court remedies or provide the Court any of the requested information regarding the status of Petitioner's efforts to exhaust state court remedies as to the claims stated in the petition.

On March 9, 2012, the Court discharged the order to show cause, denied Petitioner's motion for a stay pursuant to Rhines v. Weber, 544 U.S. 269, 276 (2005), and granted Petitioner thirty days from the date of service of the order to withdraw his unexhausted claims in anticipation of a stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). (Doc. 9.) This order was served by mail on Petitioner on March 9, 2012, and the mail has not been returned. Petitioner did not withdraw his unexhausted claims or otherwise respond to the Court's order of March 9, 2012.

On May 18, 2012, Petitioner filed a document stating under penalty of perjury that on March 26, 2012, he had filed a "REQUEST FOR NOTICE OF FILING," which does not appear on the docket. Petitioner further stated that he had not received an order in response to his filings. He requested a notice of receipt or of filing and a copy of the pertinent docket entries. *fn2

Implied in Petitioner's "NOTICE OF DELAY" is an assertion that Petitioner did not receive the Court's order of March 9, 2012, although Petitioner does not appear to make such an assertion directly under penalty of perjury.

II. Directions to the Clerk

Although the Court's docket clearly reflects prior service of the order, the Clerk is DIRECTED to send to Petitioner a copy of the Court's order of March 9, 2009 (doc. 9) along with this order.

III. Order to Petitioner to Identify and Withdraw All Unexhausted Claims No Later than Ten (10) Days after the Date of Service of this Order or Suffer Dismissal of the Petition

Petitioner is DIRECTED to file no later than ten (10) days after the date of service of this order 1) a statement identifying all claims in the petition as to which state court remedies have not been exhausted, and 2) a motion to withdraw all unexhausted claims from the petition.

In the event Petitioner does not file such a motion, the Court will assume Petitioner desires to return to state court to exhaust the unexhausted claims and will therefore dismiss the entire petition without prejudice.

IT IS SO ORDERED.


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