CORNWELL v. WARDEN, 2:06-cv-00705 JAM KJN. (2012)
Court: District Court, E.D. California
Number: infdco20120110592
Visitors: 5
Filed: Jan. 06, 2012
Latest Update: Jan. 06, 2012
Summary: ORDER KENDALL J. NEWMAN, Magistrate Judge. In findings and recommendations issued on October 25, 2011, the undersigned found several claims in the first amended petition unexhausted. (Dkt. No. 84.) On December 15, 2011, the district judge adopted the findings and recommendations in full. (Dkt. Nos. 85 and 87.) Since a federal court may not adjudicate a mixed petition, the next step in these proceedings is addressing the presence of unexhausted claims in the first amended petition. See Rose v.
Summary: ORDER KENDALL J. NEWMAN, Magistrate Judge. In findings and recommendations issued on October 25, 2011, the undersigned found several claims in the first amended petition unexhausted. (Dkt. No. 84.) On December 15, 2011, the district judge adopted the findings and recommendations in full. (Dkt. Nos. 85 and 87.) Since a federal court may not adjudicate a mixed petition, the next step in these proceedings is addressing the presence of unexhausted claims in the first amended petition. See Rose v. ..
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ORDER
KENDALL J. NEWMAN, Magistrate Judge.
In findings and recommendations issued on October 25, 2011, the undersigned found several claims in the first amended petition unexhausted. (Dkt. No. 84.) On December 15, 2011, the district judge adopted the findings and recommendations in full. (Dkt. Nos. 85 and 87.) Since a federal court may not adjudicate a mixed petition, the next step in these proceedings is addressing the presence of unexhausted claims in the first amended petition. See Rose v. Lundy, 455 U.S. 509 (1982).
Within ten days of the filed date of this order, petitioner shall inform the court whether he wishes to: (1) dismiss the first amended petition under Rose; (2) file a second amended petition without the unexhausted claims, as described in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007); or (3) file a motion for stay and abeyance under Rhines v. Weber, 544 U.S. 269 (2005). Within five days of petitioner's filing, respondent shall file a response.
IT IS SO ORDERED.
Source: Leagle
