Opinion
1:21-cv-01163-SAB-HC
09-17-2021
ISAIAH QUINONEZ, Petitioner, v. ON HABEAS CORPUS, Respondent.
ORDER DISCHARGING ORDER TO SHOW CAUSE, GRANTING PETITIONER LEAVE TO AMEND COMPLAINT TO DELETE UNEXHAUSTED CLAIMS, AND DIRECTING CLERK OF COURT TO SEND BLANK § 2254 PETITION (ECF No. 4)
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On August 9, 2021, the Court issued an order to show cause (“OSC”) why the petition should not be dismissed for failure to exhaust state judicial remedies with respect to the ineffective assistance of counsel claims. (ECF No. 4). On August 30, 2021, Petitioner filed a response to the OSC. (ECF No. 6). Therein, Petitioner states that he was not aware that he had to exhaust the ineffective assistance of counsel claims at the state level. Petitioner further states that if the Court concludes that this does not show cause as to why Petitioner failed to exhaust said claims at the state level, then he chooses to withdraw the unexhausted claims and proceed with the exhausted claims. (Id. at 1).
Page numbers refer to the ECF pagination stamped at the top of the page.
In the instant petition, Petitioner raises four grounds for relief. (ECF No. 1 at 4-5). Petitioner acknowledges that he failed to exhaust his two ineffective assistance of counsel claims in the state court. (ECF No. 1 at 5; ECF No. 6 at 1). “Federal courts may not adjudicate mixed habeas petitions, that is, those containing both exhausted and unexhausted claims.” Henderson v. Johnson, 710 F.3d 872, 873 (9th Cir. 2013). However, “a petitioner who files a mixed petition must . . . be offered leave to amend the petition to delete any unexhausted claims and to proceed on the exhausted claims.” Id
In light of Petitioner's response, IT IS HEREBY ORDERED that:
1. The order to show cause issued on August 9, 2021 (ECF No. 4) is DISCHARGED;
2. Petitioner is GRANTED leave to file an amended petition that deletes the unexhausted claims within THIRTY (30) days of the date of service of this order; and
3. The Clerk of Court is DIRECTED to send Petitioner a blank § 2254 petition.
IT IS SO ORDERED.