Joshua Kane Smith v. C. Koenig ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 JOSHUA KANE SMITH, Case No. 2:19-cv-01650-PSG (AFM) 11 Petitioner, 12 ORDER TO SHOW CAUSE v. 13 C. KOENIG, Warden, 14 Respondent. 15 16 17 In February 2019, Petitioner filed a habeas corpus petition in this Court 18 pursuant to 28 U.S.C. § 2254. The petition includes four claims for relief. 19 Recognizing that he had not exhausted his state remedies with respect to Ground Four 20 of the petition, Petitioner requested a stay. (ECF No. 1 at 7, 9.) 21 On July 11, 2019, the Court denied Petitioner’s motion for a stay under Rhines 22 v. Weber, 544 U.S. 269 (2005), but granted a stay under Kelly v. Small, 315 F.3d 23 1063 (9th Cir. 2003) on the condition that Petitioner file a Notice of Withdrawal 24 withdrawing the unexhausted claim. (ECF No. 13) Petitioner’s Notice of Withdrawal 25 was due on August 10, 2019. As of the date of this order, Petitioner has neither filed 26 the requisite notice nor sought an extension of time within which to do so. 27 Federal habeas corpus relief is not available unless a petitioner has exhausted 28 state court remedies. 28 U.S.C. § 2254(b)(1). Because the petition contains an 1 || unexhausted claim, it is subject to dismissal. See Rose v. Lundy, 455 U.S. 509, 518- 2 |) 22 (1982). 3 Accordingly, on or before September 20, 2019, Petitioner is ordered to show 4 || cause why this action should not be summarily dismissed without prejudice for 5 || failure to exhaust state remedies. Petitioner may discharge this order by filing either 6 || (1) a Notice of Withdrawal of Ground Four or (2) a Notice of Exhaustion, 7 || demonstrating that he has now presented Ground Four to the California Supreme 8 || Court and that court has ruled upon it. 9 Petitioner is expressly warned that failure to timely file a response to this 10 || Order will result in a recommendation that this action be dismissed for failure 11 || to exhaust and/or failure to prosecute pursuant to Federal Rule of Civil 12 || Procedure 41(b).! 13 It is so ordered. 14 DATED: 8/29/2019 (dy Wx k 15 a, 16 11 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 ||} ———— ' Petitioner is advised that if the present petition is dismissed without prejudice, any future petition 28 | is subject to the one-year statute of limitation set out in 28 U.S.C. § 2244(d)(1).