July 6, 2007
Petitioner is an Arizona prisoner under sentence of death who is awaiting appointment of state post-conviction-relief ("PCR") counsel. Due to the Arizona Supreme Court's delay in initiating PCR proceedings and appointing PCR counsel, he filed a premature habeas petition in this Court to protect against expiration of the one-year statute of limitations in 28 U.S.C. § 2254(d). ( See Dkt. 8 at 1-2.) There being no objection from Respondents, this Court stayed the petition pending completion of Petitioner's first round of state PCR proceedings. ( Id.)
On June 28, 2007, Petitioner filed notice of an order of the Arizona Supreme Court filed on May 31, 2007, directing the Clerk of the Arizona Supreme Court to issue a Notice for Post-Conviction Relief in Petitioner's case, nunc pro tunc to October 26, 2005. (Dkt. 19.) As set forth in this Court's order of November 22, 2006, in Arizona a PCR notice is the triggering event for post-conviction review and for tolling of the federal habeas statute of limitations under § 2244(d)(2) pursuant to Isley v. Arizona Dep't of Corrections, 383 F.3d 1054, 1055-56 (9th Cir. 2004). (Dkt. 8 at 2.) As a result of this development, Petitioner requests that his habeas petition be dismissed without prejudice. Good cause appearing,
IT IS HEREBY ORDERED that the stay entered by the Court on February 2, 2007 (Dkt. 18) is LIFTED. IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus (Dkt. 1) and this action are DISMISSED WITHOUT PREJUDICE for failure to exhaust state remedies. The Clerk of Court shall enter a judgment of dismissal accordingly.