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Hughes v. Marshall

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
Jan 30, 2012
No. C 11-01185 SBA (PR) (N.D. Cal. Jan. 30, 2012)

Opinion

No. C 11-01185 SBA (PR)

01-30-2012

NICK HUGHES, Petitioner, v. JOHN MARSHALL, Warden, Respondent.


ORDER OF DISMISSAL

Petitioner Nick Hughes, a state prisoner, filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

In an Order dated December 20, 2011, the Court granted Respondent's motion to dismiss petition upon concluding that the petition was mixed, that is, that it contained both exhausted and unexhausted issues. The general rule is that a federal district court must dismiss a federal habeas petition containing any claim as to which state remedies have not been exhausted. See Rose v. Lundy, 455 U.S. 509, 522 (1982). However, instead of an outright dismissal of the action, the Court allowed Petitioner to choose whether he wanted to elect from three choices, namely to dismiss the unexhausted issues only, voluntarily dismiss the entire petition, or ask for a stay. Petitioner was instructed to notify the Court of his choice within thirty days and that his failure to do so will result in the dismissal of his petition.

More that thirty days have passed, and Petitioner has not responded to the Court's December 2011 Order. This petition therefore is dismissed as mixed. Accordingly, this action is DISMISSED without prejudice to filing a new federal habeas action containing a petition with only exhausted claims. The Court has rendered its final decision on this matter; therefore, this Order TERMINATES Petitioner's case. The Clerk of the Court shall terminate all pending motions and close the file.

IT IS SO ORDERED.

________________________

SAUNDRA BROWN ARMSTRONG

United States District Judge

NICK R HUGHES, Plaintiff,

v.

JOHN MARSHALL et al, Defendant.

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California.

That on January 30, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Nick R. Hughes V-59310

California Men's Colony

P.O. Box 8101

San Luis Obispo, CA 93409

Richard W. Wieking, Clerk

By: LISA R CLARK, Deputy Clerk


Summaries of

Hughes v. Marshall

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
Jan 30, 2012
No. C 11-01185 SBA (PR) (N.D. Cal. Jan. 30, 2012)
Case details for

Hughes v. Marshall

Case Details

Full title:NICK HUGHES, Petitioner, v. JOHN MARSHALL, Warden, Respondent.

Court:UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Date published: Jan 30, 2012

Citations

No. C 11-01185 SBA (PR) (N.D. Cal. Jan. 30, 2012)