Jones v. Davey

Northern District of California, cand-4:2015-cv-01560

ORDER OF DISMISSAL. Signed by Judge Haywood S. Gilliam, Jr. on 10/29/2015.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DAMON L. JONES, 7 Case No. 15-cv-01560-HSG (PR) Petitioner, 8 ORDER OF DISMISSAL v. 9 DAVE DAVEY, Warden, 10 Respondent. 11 12 Northern District of California United States District Court 13 On April 6, 2015, petitioner Damon L. Jones, an inmate at Corcoran State Prison, filed a 14 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 12, 2015, the Court 15 issued an Order on Initial Review in which it found that Jones had filed a mixed petition 16 containing exhausted and unexhausted claims. In the Order, the Court explained to Jones that a 17 federal court must dismiss a mixed petition and provided him with an opportunity to amend the 18 petition by withdrawing the unexhausted claims and proceeding only on the exhausted claims, or 19 to dismiss the mixed petition and return to federal court with a new petition once all claims were 20 exhausted. The Court also explained that Jones could seek a stay of the petition while he was 21 exhausting his claims in state court. 22 On October 1, 2015, the Court denied Jones's motion for a stay and gave him an 23 opportunity to decide whether he wanted to dismiss the unexhausted claims and go forward with 24 only the exhausted ones or dismiss the entire action and return to state court to exhaust all his 25 claims before filing a new federal petition. Jones has filed a "Request for Petitioner to Exhaust 26 State and Federal Claims" in which he chooses the second option offered him, i.e., that he would 27 dismiss this action and return to state court to exhaust all claims before filing a new federal 28 petition presenting all of his claims. See Dkt. No. 10. Accordingly, this action is DISMISSED 1 without prejudice to Jones filing a new federal petition after exhausting state court remedies for all 2 the claims in that new petition. 3 The Court notes that Jones attached to his request what appears to be a copy of his 4 proposed state habeas petition to the Alameda County Superior Court. See Dkt. No. 10-1. Jones 5 is advised that this Court cannot file the state habeas petition for him. The Clerk shall return to 6 Jones the proposed state petition at Docket No. 10-1 for Jones to himself file in state court. Jones 7 is cautioned to act swiftly to get to state court, proceed through state court, and return to federal 8 court with a new petition so that he does not miss the one-year deadline in the habeas statute of 9 limitations, 28 U.S.C. § 2244(d). 10 The Clerk shall terminate Docket No. 10 and close the file. 11 IT IS SO ORDERED. 12 Dated: 10/29/2015 Northern District of California United States District Court 13 ______________________________________ HAYWOOD S. GILLIAM, JR. 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2