Opinion
2:15-cv-00673-JAD-NJK
12-23-2016
Jareal Edwards, Petitioner v. Jo Gentry, et al., Respondents
Order Directing Response
Because pro se § 2254 petitioner Jareal Edwards's petition is partially unexhausted, I directed Edwards to notify the court by December 17, 2016, how he wishes to proceed with this action. Edwards timely filed a response, but that response is ambiguous. He states that he desires "to return to the state court to exhaust [his] unexhausted claims and present them before a Judge" but that he does not need a stay and abeyance.
ECF No. 10 at 2.
The above "option" would require the dismissal of this action, which may not be what Edwards wants. Edwards can present claims to the state courts any time that he wants to, without regard to this federal action, subject to the procedural rules applicable in the state courts. Thus he need not obtain dismissal of this action to exhaust his claims in state court. The choice that Edwards needs to make concerns what will happen in this federal action while he seeks to exhaust his unexhausted claims in state court. His options include: (1) filing a motion to stay this federal action while he exhausts the claims in state court, without the unexhausted claims being dismissed during the stay, subject to the requirements of Rhines v. Weber, 544 U.S. 269 (2005); (2) filing a motion to stay this action while he exhausts the claims, with the unexhausted claims being dismissed without prejudice during the stay but being subject to possible time-bar issues thereafter, see King v. Ryan, 564 F.3d 1133, 1140-43 (9th Cir. 2009); (3) dismissal of only the unexhausted claims; or (4) dismissal of the entire petition.
See Rose v. Lundy, 455 U.S. 509 (1982). --------
I give Edwards one last opportunity to make a proper election about what relief to request in this federal action regarding the unexhausted claims. If Edwards fails by January 23, 2017, to either (a) move for a stay under Rhines, (b) move for a stay with dismissal of the unexhausted claims under King, or (c) request a dismissal of only the unexhausted claims, then the entire petition will be dismissed without further notice. Edwards will not be given another opportunity to make a proper election as to the relief requested.
Conclusion
Accordingly, IT IS HEREBY ORDERED that Edwards must notify the court how he wishes to proceed with his unexhausted claims in this action by January 23, 2017. If Edwards does not timely respond or otherwise request relief, this action will be dismissed without prejudice and without further notice.
Dated this 23rd day of December, 2016.
/s/_________
Jennifer A. Dorsey
United States District Judge