Opinion
Case No. C05-2076-RSM.
May 19, 2006
ORDER DENYING PETITIONER'S MOTION FOR STAY; GRANTING PETITIONER'S MOTION TO DISMISS § 2254 PETITION
The Court, having reviewed petitioner's motion for stay, or in the alternative, for dismissal without prejudice of his § 2254 petition, the Report and Recommendation of the Honorable Mary Alice Theiler, United States Magistrate Judge, any objections thereto, and the remaining record, does hereby ORDER:
(1) The Court adopts the Report and Recommendation, and notes his continuing objection to the Court's construing this challenge as appropriate under 28 U.S.C. § 2254, which he expresses in his Objections;
(2) Petitioner's motion for a stay (Dkt. #9) is DENIED;
(3) Petitioner's request, in the alternative, for dismissal without prejudice, is GRANTED. Petitioner's § 2254 petition and this action are DISMISSED without prejudice; and
(4) The Clerk is directed to send a copy of this Order to petitioner and to Judge Theiler.