Barillas v. Hill ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSE HUMBERTO BARILLAS, Case No. 22-cv-02957-AMO (PR) 8 Petitioner, ORDER OF DISMISSAL WITHOUT PREJUDICE 9 v. 10 JAMES S. HILL, Warden, Respondent. 11 12 Petitioner Jose Humberto Barillas, a state prisoner, filed a pro se petition for a writ of 13 habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state conviction of multiple crimes for 14 sexually abusing a child. 15 In an Order dated December 7, 2023, the Court granted Respondent’s motion to dismiss 16 petition upon concluding that the petition was mixed, that is, that it contained both exhausted and 17 unexhausted issues. Dkt. 22. Generally, a federal district court must dismiss a federal habeas 18 petition that contains claims for which state remedies have not been exhausted. See Rose v. 19 Lundy, 455 U.S. 509, 522 (1982). However, instead of an outright dismissal of the action, the 20 Court allowed Barillas to choose whether he wanted to “(1) file an amended petition that 21 include[d] only his two exhausted claims (Claims 1 and 2) and strike[] the remaining unexhausted 22 Claim 3, or (2) file a request for a stay of this matter while he exhausted his unexhausted Claim 3 23 in state court.” Id. at 6. Barillas was instructed to notify the Court of his choice within twenty- 24 eight days and that a failure to do so would result in the dismissal of his petition. 25 Barillas did not make an election within the time allotted. Because Barillas has failed to 26 make an election, the petition is DISMISSED as mixed. See Rose, 455 U.S. at 522. The dismissal 27 is without prejudice to Barillas filing a new federal habeas action containing a petition with only 1 exhausted claims. 2 The Clerk of the Court shall terminate all pending motions and close the file. 3 IT IS SO ORDERED. 4 || Dated: February 12, 2024 5 HO - 6 Cnacek ARACELI MARTINEZ-OLGUIN 7 United States District Judge 8 9 10 11 12 13 15 16 17 Z 18 19 20 21 22 23 24 25 26 27 28