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Gilbert Hernandez v. Ron Barnes

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


October 19, 2012

GILBERT HERNANDEZ
v.
RON BARNES

The opinion of the court was delivered by: Hon. Margaret A. Nagle , United States Magistrate Judge

CIVIL MINUTES - GENERAL

T ENTRY: ORDER TO SHOW CAUSE RE: DISMISSAL OF "MIXED" PETITION

Earlene Carson N/A Deputy Clerk Court Reporter/Tape No. ATTORNEYS PRESENT FOR PETITIONER: ATTORNEYS PRESENT FOR RESPONDENTS: N/A N/A

PROCEEDINGS (In Chambers):

action commenced on October 16, 2012, when Petitioner -- who is represented by counsel -a habeas petition, pursuant to 28 U.S.C. § 2254, which alleges five grounds for relief

The Petition alleges that: Grounds One through Three were raised in the California Court on direct appeal; and Grounds Four and Five have not been raised in the California Court. Assuming, arguendo, that Grounds One through Three were fairly presented in petition for review filed by Petitioner on appeal, those claims are exhausted. However, because admittedly has not presented Grounds Four and Five to the California Supreme Court, claims are unexhausted.*fn1

Petition is "mixed," because Grounds Four and Five are unexhausted, and thus, it may not be considered. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States

Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has examined the dockets of the Courts, it appears that summary dismissal of the Petition is required. *fn2

Petitioner is ORDERED TO SHOW CAUSE why this action should not be without prejudice due to the "mixed" nature of the Petition. By no later than 9, 2012, Petitioner shall file a Response to this Order To Show Cause. Petitioner shall whether he concedes that dismissal is appropriate. If Petitioner opposes dismissal, he *fn3 his "mixed" Petition should not be dismissed without prejudice. If Petitioner seeks he must explain why a stay meets the requirements of, and is warranted, under either Rhines 544 U.S. 269, 275-77, 125 S. Ct. 1528, 1534-35 (2005), or King v. Ryan, 564 F.3d 1133, (9th Cir. 2009).

IT IS SO ORDERED.


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