ORDER GRANTING MOTION TO LIFT STAY; DISMISSING UNEXHAUSTED CLAIMS; ORDER TO SHOW CAUSE

RONALD M. WHYTE, District Judge.

Petitioner, a California prisoner proceeding pro se, filed a second amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 31, 2008, the court granted respondent's motion to dismiss for failure to exhaust and directed the petitioner to elect how he would like to proceed. On August 12, 2008, the court granted petitioner's request to stay the proceedings and held petitioner's second amended petition in abeyance pending exhaustion of his claims in the state supreme court. In that order, the court ordered petitioner to file another amended petition containing his fully exhausted claims as well as a motion to lift the stay within thirty days of the California Supreme Court's decision.

On September 6, 2013, and November 26, 2013, petitioner filed a request to lift the stay. However, petitioner did not file an amended petition as directed by the court in 2008. Moreover, petitioner stated that his state habeas petition, filed in the California Supreme Court on July 30, 2008, was denied on January 21, 2009. Petitioner offers no explanation as to why he has waited almost five years after the California Supreme Court denied his petition to return to federal court. In the court's August 12, 2008 order granting petitioner's motion to stay, the court informed petitioner that if petitioner wished to have the court consider any of his then unexhausted claims, "he must properly present those claims to the California Supreme Court within thirty days . . . [and] within thirty days of the California Supreme Court's decision, he must file an amended petition in this Court setting forth his newly exhausted claims in addition to any previously exhausted claims he still wishes to have this Court consider." (Emphasis added.) Petitioner has not done so. Accordingly, the court will dismiss the unexhausted claims, and proceed only with the exhausted claims, as presented in petitioner's second amended petition.

As grounds for federal habeas relief, petitioner's surviving claims are: (1) he was denied his due process right to fundamental fairness in that his current crimes of conviction rest upon the incredibly insubstantial uncorroborated testimony of accomplice Niyah Edwards thereby rendering the state court's rejection of such claim objectively unreasonable, and (2) there was insufficient evidence to support some of his convictions, thereby rendering the state court's rejection of such claim objectively unreasonable. The court will require respondent to show cause why these claims in petitioner's second amended petition should not be granted.

CONCLUSION

1. Petitioner's motion to lift the stay is GRANTED. The clerk shall RE-OPEN this action.

2. Respondent shall file with the court and serve on petitioner, within sixty days of the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. Respondent shall file with the answer and serve on petitioner a copy of all portions of the underlying state criminal record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition.

If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within thirty days of the date the answer is filed.

3. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases within sixty days of the date this order is filed. If respondent files such a motion, petitioner shall file with the court and serve on respondent an opposition or statement of non-opposition within twenty-eight days of the date the motion is filed, and respondent shall file with the court and serve on petitioner a reply within fourteen days of the date any opposition is filed.

4. It is petitioner's responsibility to prosecute this case. Petitioner is reminded that all communications with the court must be served on respondent by mailing a true copy of the document to respondent's counsel. Petitioner must keep the court and all parties informed of any change of address by filing a separate paper captioned "Notice of Change of Address." He must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

IT IS SO ORDERED.