Opinion
No. C 01-2442 MMC (PR)
April 3, 2002
ORDER OF DISMISSAL
Petitioner, a California state prisoner, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. On January 25, 2002, the Court dismissed the petition because it was a "mixed" petition containing an unexhausted claim. See Rose v. Lundy, 455 U.S. 509, 515-16 (1982). Petitioner was given the option of filing within thirty days an amended petition containing only exhausted claims, and was cautioned that his failure to do so would "result in the dismissal of this action without prejudice to filing a new petition containing only exhausted claims." See Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000). Petitioner has failed to file an amended petition.
Accordingly, the case is hereby DISMISSED without prejudice to petitioner's filing a new petition containing only exhausted claims. See WMX Technologies v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (holding further district court determination necessary where plaintiff fails to amend after complaint has been dismissed with leave to amend).
All pending motions are terminated and the Clerk shall close the file.
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED the case is hereby DISMISSED without prejudice to Petitioner's filing a new petition containing only exhausted claims. All pending motions are TERMINATED.