Opinion
1:07-cv-01805 LJO YNP (DLB) (HC).
August 24, 2009
ORDER GRANTING PETITIONER'S MOTION TO WITHDRAW CLAIM NUMBER ONE [Doc. #21] ORDER DENYING RESPONDENT'S MOTION TO DISMISS [Doc. #16]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On January 29, 2009, Respondent filed a motion to dismiss claiming that Petitioner had failed to exhaust ground one of his petition thereby warranting dismissal. (Doc. #16)
On July 14, 2009, this Court granted Petitioner leave to withdraw the one unexhausted claim from the petition and continue with only the fully exhausted claims. (Doc. #20).
On August 3, 2009, Petitioner filed a motion to withdraw claim one from his petition and continue with the reaming claims. (Doc. #21).
Petitioner's motion to withdraw claim one from his petition for writ of habeas corpus is GRANTED and Petitioner's claim for "Denial of effective assistance of counsel" and "Incompetency of counsel," ground one in the petition, is hereby DISMISSED.
With claim one withdrawn, the petition for writ of habeas corpus no longer contains any unexhausted claims. Respondent's motion to dismiss is hereby DENIED.
ORDER
Accordingly the Court ORDERS that:
1. Petitioner's motion to withdraw the unexhausted claim is GRANTED;
2. Ground one of the petition for writ of habeas corpus is DISMISSED;
3. Respondent's motion to dismiss is DENIED;
4. Respondent SHALL FILE and ANSWER within thirty (30) days of service of this order.
Both parties should refer to the order directing Respondent to file a response for further instructions regarding filing an answer and traverse. (Doc. #11).
IT IS SO ORDERED.