Free Order on Motion to Dismiss - District Court of Connecticut - Connecticut

Case 3:03-cv-00655-PCD

Document 28

Filed 07/14/2004

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT David JOYCE, Petitioner, : : : vs. : : Theresa C. LANTZ Commissioner of : Connecticut Department of Corrections, : and Hector RODRIGUEZ, Warden Cheshire : Correctional Institute, : Respondents. :

Case No: 3:03cv655 (PCD)

ORDER ON MOTION TO DISMISS AND MOTION FOR DEFAULT Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Respondents moved to dismiss the Petition on the grounds that it contains claims that were not exhausted in state court. Petitioner subsequently filed a Second Amended Petition which deletes any reference to the unexhausted claims and argues that the Motion to Dismiss should therefore be denied. Accordingly, Respondents' Motion to Dismiss [Doc. No. 16] is denied as moot. See Zarvela v. Artuz, 254 F.3d 374, 378 (2d Cir. 2001) (In the event that a petitioner files a claim in which "one or more of his claims has not been fully exhausted ..., he will be considered to have filed a so-called `mixed petition,' in which event the district court must either send him back to state court or afford him the opportunity to abandon his unexhausted claims and proceed only with his exhausted claims).1
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The district court may also stay proceedings on the exhausted claims to allow the petitioner to exhaust the other claims and then present them at once. Zarvela, 254 F.3d at 381-82. Respondent suggests this as an option, Resp. Mem. Supp. Dismissal at 4, however Petitioner does not state whether he is seeking a stay, arguing only that the Motion to Dismiss is mooted by the amendment. Pet. Mem. Opp. Dismissal at 2-3. Petitioner has, in the meantime, filed a Motion for Default thus suggesting that he expects the case to proceed and is therefore deemed not to request a stay of the exhausted claims.

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Case 3:03-cv-00655-PCD

Document 28

Filed 07/14/2004

Page 2 of 2

Petitioner has filed a Motion for Default based on Respondents' failure to respond to the Second Amended Petition. Respondent counters that no order to show cause has issued with respect to the Second Amended Petition and that no response is yet required. Resp. Mem. Opp. Default at 4, citing Fed. R. Gov. Sec. 2254 3(b)-4. Petitioner's Motion for Default [Doc. No. 26] is therefore denied and Respondents are directed to filed a response to Petitioner's Second Amended Petition on or before August 23, 2004.

SO ORDERED. Dated at New Haven, Connecticut, July 14 , 2004. /s/ Peter C. Dorsey, U.S. District Judge United States District Court

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