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Robert L. Fields v. Lewis

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


May 14, 2013

ROBERT L. FIELDS,
PETITIONER,
v.
LEWIS, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: George H. King United States District Judge

MEMORANDUM AND ORDER DISMISSING PETITION WITHOUT PREJUDICE

Petitioner filed this petition for a writ of habeas corpus on October 13, 2011, raising seven claims for relief. As petitioner acknowledged, four of the claims had not been exhausted. [See Petition at 12]. On December 7, 2011, the case was stayed so that petitioner could exhaust his state remedies with respect to those four claims. More than a year later -- after petitioner failed to file status reports as required and also failed to act diligently in attempting to exhaust his state remedies -- the stay was vacated. On February 1, 2013, the Court issued an order explaining that because the petition included unexhausted claims, it was subject to dismissal. Petitioner was directed to file one of the following within twenty-one (21) days of the order: (1) a notice of exhaustion; (2) a notice withdrawing the unexhausted claims; or (3) a request for dismissal of the entire petition without prejudice.*fn1 The Court advised petitioner that failure to respond to the order would be deemed his consent to dismissal of the petition without prejudice. Petitioner's response to the order was due on February 22, 2013. As of the date of this memorandum and order, petitioner has neither filed a response nor requested additional time within which to do so.

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). Petitioner has conceded that he has failed to exhaust his state remedies with respect to claims four through seven of the petition. He has not remedied that deficiency despite having been provided an ample opportunity to do so. Accordingly, the petition is dismissed without prejudice.

It is so ordered.


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