Opinion
21-cv-05520-CRB (PR)
09-29-2021
DOMINIC MIXONGIVENS, BC9846, Petitioner, v. WARREN L. MONTGOMERY, Warden, Respondent.
ORDER OF DISMISSAL
CHARLES R. BREYER, United States District Judge.
Petitioner, a state prisoner at Calipatria State Prison (CAL), filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a conviction from Santa Clara County Superior Court based on two federal claims: (1) juror misconduct and (2) insufficiency of the evidence. But petitioner exhausted state judicial remedies only as to the second claim.
On August 19, 2021, the court dismissed petitioner's mixed petition - a petition containing both exhausted and unexhausted claims - without prejudice and, pursuant to the law of the circuit, asked petitioner whether he wished to (1) withdraw his unexhausted claim and proceed only on his exhausted claim, or (2) dismiss the entire mixed petition and return to federal court with a new petition once all claims are exhausted. The court also informed petitioner that he may be able to seek a stay of the proceedings “if he can show that there was good cause for his failure to exhaust the unexhausted claim in state court, and that the claim is potentially meritorious.” Aug. 19, 2021 Order at 2 n.1 (citing Rhines v. Webber, 544 U.S. 269, 277 (2005)). The court asked petitioner to respond within 28 days and warned him that “[f]ailure to respond within the designated time will result in the dismissal of the entire mixed petition without prejudice to filing a new federal petition containing only exhausted claims.” Id. at 2.
It has been 40 days since the court's August 19, 2021 order and petitioner has neither responded to the order nor requested an extension of time to do so. The instant mixed petition accordingly is DISMISSED without prejudice to filing a new federal petition containing only exhausted claims.
The clerk shall close the file and terminate all pending motions as moot.
IT IS SO ORDERED.