Order Granting Motion to Dismiss Unexhausted Grounds and to Construe Ground 4 as a Sixth Amendment Claim

[ECF No. 44]

JENNIFER A. DORSEY, District Judge.

On January 15, 2019, I granted respondents' motion to dismiss in part after finding several of habeas petitioner Evier Diaz Paez's claims unexhausted.1 Among those grounds was Ground 4, which asserted a due process violation. Because Ground 4 would be exhausted if construed as a Sixth Amendment claim, I indicated that I would construe Ground 4 as a Sixth Amendment claim if petitioner submitted a notice that he would like Ground 4 so construed. I ordered petitioner also to file either: (1) a motion to dismiss seeking partial dismissal of only the unexhausted claims; (2) a motion to dismiss the entire petition without prejudice in order to return to state court to exhaust the unexhausted claims; and/or (3) a motion for other appropriate relief, such as a motion for a stay and abeyance to hold the exhausted claims in abeyance while petitioner returns to state court to exhaust the unexhausted claims.

Petitioner has moved to construe Ground 4 as a Sixth Amendment claim and for dismissal of his unexhausted claims.2 Good cause appearing, IT IS HEREBY ORDERED that petitioner's motion [ECF No. 44] is GRANTED: the court will construe Ground 4 as a Sixth Amendment effective-assistance-of-counsel claim.

IT IS FURTHER ORDERED that Ground 5, Ground 7, in part, as set forth in my order of January 15, 2019, Ground 8, and Ground 9 except as to Ground 9(D) are DISMISSED without prejudice.

IT IS FURTHER ORDERED that respondents have until April 15, 2019, to file an answer to the remaining claims in the petition. Petitioner will have 30 days from service of the answer to file a reply.