Opinion
No. CIV S-06-0454 GEB GGH P.
February 19, 2008
ORDER
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By Order, filed on February 12, 2007, the district judge adopted the December 26, 2006, Findings and Recommendations, granting petitioner's motion for a stay and abeyance in order for petitioner to seek state court exhaustion of claims one and four of his original petition. Prior to the filing of the order, petitioner, appearing to have been confused as to how to proceed, on February 8, 2008, filed a first amended petition in this court, wherein he avers that he sets forth only the two exhausted claims.
Rather than lifting the stay and proceeding on the two exhausted claims of the first amended petition, the court will afford petitioner the opportunity to seek to exhaust his unexhausted claims in state court. Should he elect not to proceed by that route, he must so inform this court, the stay will be lifted, and this matter will proceed on petitioner's first amended complaint.
Accordingly, IT IS ORDERED that:
1. Petitioner must inform the court, within fifteen (15) days, whether he will proceed to file a petition in the state supreme court seeking to exhaust claims one and four of his original petition OR whether he elects to proceed on the first amended petition, filed in this court on February 8, 2008;
2. If he elects to seek state court exhaustion of his unexhausted claims, the stay will remain in force but he must file the state court petition within thirty (30) days of the date of this order; once the state court reaches a decision, not later than thirty days thereafter, petitioner must inform this court of the decision reached by the state court;
4. If, alternatively, petitioner elects to proceed on the first amended petition, the stay will be lifted and this matter proceed forthwith.