Summary
accepting amended, signed habeas petition after original, unsigned petition was dismissed without prejudice
Summary of this case from Nealy v. ArtestOpinion
No.C 01-2802 MMC (PR)
November 9, 2001
ORDER OF DISMISSAL WITHOUT PREJUDICE
Petitioner filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. The original petition was not signed and was therefore dismissed with leave to file an amended petition with petitioner's signature. Petitioner filed a signed, amended petition raising the following two claims: (1) that the jury instruction regarding driving under the influence was improper; and (2) that the trial court improperly admitted evidence of the results of petitioner's blood test. After a review of the amended petition, the Court discovered that the jury instruction claim had not been exhausted, see 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 522 (1982), and therefore dismissed the petition with leave to further amend to delete the unexhausted claim. See Anthon v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000). Petitioner was instructed that failure to do so would "result in the dismissal of this action without prejudice to filing a new petition containing only exhausted claims." Petitioner has filed a second amended petition, which again contains the unexhausted jury instruction claim in addition to his exhausted claim. Because petitioner has failed to delete the unexhausted claim as instructed by the Court. his second amended complaint is hereby DISMISSED without prejudice to petitioner's filing a new petition containing only exhausted claims.
All pending motions are terminated and the clerk shall close the file.
IT IS SO ORDERED.