Opinion
Civil Action No. 11-40230-FDS
11-29-2012
FLORENCIO MENDEZ, Petitioner, v. JAMES SABA, Respondent.
ORDER ON RESPONDENT'S MOTION TO DISMISS
SAYLOR, J.
On December 7, 2011, Florencio Mendez filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, he raised the following four grounds for review: (1) evidence was improperly admitted in violation of the "first complaint" doctrine; (2) there was a substantial risk that some jurors decided on the issue of guilt prior to deliberating with the other jurors; (3) the trial judge was not impartial, which prejudiced the defendant; and (4) the court improperly considered the emotions displayed by the testifying victims during sentencing. On May 21, 2012, respondent moved to dismiss the entire petition because it contained unexhausted claims.
On July 2, 2012, this Court issued a memorandum and order on petitioner's motion to stay and respondent's motion to dismiss. The Court denied the motion to stay and determined that petitioner properly exhausted only his "first complaint" ground for review in the state courts. The Court further ruled that it would grant respondent's motion to dismiss unless, within 30 days, petitioner filed a request to dismiss the unexhausted claims in his petition and proceed on the merits of the exhausted claim. On July 26, 2012, petitioner filed a letter making that request. (Doc. 20).
In accordance with this Court's order of July 2, 2012, and petitioner's letter request, respondent's motion to dismiss is granted in part and denied in part. Grounds Two, Three, and Four are hereby dismissed. A scheduling order will issue herewith.
So Ordered.
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F. Dennis Saylor IV
United States District Judge