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Carter v. Biter

United States District Court, C.D. California

January 15, 2014

LARRY K. CARTER, Petitioner,
v.
MARTIN D. BITER, Respondent.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable John A. Kronstadt, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

On September 6, 2013, Petitioner filed a "Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody." At the same time, Petitioner filed an "Application for Protective Petition'; Motion for Stay-and-Abeyance, ' etc." ("Motion for a Stay"). Respondent filed a response to Petitioner's Motion for a Stay on October 2, 2013.

On October 31, 2013, the Court filed an "Order Denying Motion for a Stay." Therein, the Court observed that Grounds Two, Three and Four of the Petition were unexhausted. The Court denied Petitioner's Motion for a Stay, and ordered that:

Within twenty (20) days of the date of this Order, Petitioner shall file either: (1) a "Notice of Voluntary Dismissal of Entire Action"; or (2) a "Notice of Voluntary Dismissal of Unexhausted Claims." Failure timely to comply with this Order may result in the dismissal of the entire action.

Petitioner has failed timely to comply with the Court's October 31, 2013 Order, despite having received an extension of time until December 27, 2013, to do so. As of the date of this Report and Recommendation, Petitioner has not filed either a "Notice of Voluntary Dismissal of Entire Action" or a "Notice of Voluntary Dismissal of Unexhausted Claims."

DISCUSSION

The Court previously determined that the Petition raises both exhausted and unexhausted claims. A district court generally must dismiss a habeas corpus petition that raises both exhausted and unexhausted claims. 28 U.S.C. § 2254(b); see Rhines v. Weber , 544 U.S. 269, 273-74 (2005); Pliler v. Ford , 542 U.S. 225, 230 (2005); Rose v. Lundy , 455 U.S. 509, 522 (1982); Jackson v. Roe , 425 F.3d 654, 658, 661 n.9 (9th Cir. 2005) ("when a district court opts not to stay a mixed petition pursuant to Rhines, the requirements set forth in Rose [v. Lundy] continue to govern"; original emphasis). However, a court may not dismiss such a petition without first affording the petitioner an opportunity to amend the petition to delete the unexhausted claims. Jefferson v. Budge , 419 F.3d 1013, 1015 (9th Cir. 2005) (citing, inter alia, Rose v. Lundy , 455 U.S. at 510).

In the present case, the Court afforded Petitioner an opportunity to delete the unexhausted claims. Petitioner has failed to do so, notwithstanding a warning that such a failure might result in the dismissal of the entire Petition. Accordingly, the Court should now dismiss the entire Petition without prejudice. See Rose v. Lundy , 455 U.S. at 522.

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered dismissing the Petition without prejudice.


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