Opinion
No. 2:12-cv-2352 KJN P
02-28-2013
ERIC MAURICE SISCO, Petitioner, v. UNKNOWN, Respondent.
ORDER
Petitioner consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). By order filed January 16, 2013, petitioner was ordered to show cause, within thirty days, why this action should not be dismissed for failure to exhaust state remedies. The thirty day period has now expired, and petitioner has not shown cause or otherwise responded to the court's order.
In petitioner's earlier habeas petition, Case No. 2:12-cv-1804 AC, the court granted petitioner leave to amend if petitioner intended for the petition filed in the instant action to serve as his amended petition in 2:12-cv-1804. On November 28, 2012, petitioner filed an amended petition in 2:12-cv-1804 AC. In light of petitioner's failure to respond to the January 16, 2013 order in this case, it appears petitioner intends to proceed solely with Case No. 2:12-cv-1804 AC. However, to the extent both cases challenge the same conviction, and petitioner wishes to raise a claim of ineffective assistance of counsel, the sole claim raised herein, petitioner should move to amend his petition in 2:12-cv-1804 AC to include such claim. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008).
IT IS HEREBY ORDERED that this action is dismissed without prejudice. 28 U.S.C. § 2254(b)(1).
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KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE