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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

KELON MICHEAL WILLIAMS,

Petitioner, No. CIV S-04-2284 GEB DAD P 

vs.

D.L. RUNNELS, et al.,

Respondents. ORDER

 /

Petitioner is a state prisoner proceeding pro se with this action. Respondents have

filed an answer to petitioner’s amended petition. Petitioner has not filed a traverse despite the

fact that respondents’ answer includes a motion to dismiss the petition on the ground that it

contains an unexhausted claim.

BACKGROUND

In the habeas petition filed on October 27, 2004, petitioner alleged three grounds

for relief and affirmatively alleged that one of them had not been presented to the state courts. It

appeared to the undersigned that petitioner had not presented either his second or his third ground

for relief to the state courts. The undersigned dismissed the mixed petition with leave to file an

amended petition containing only exhausted claims. Petitioner filed an amended petition on

December 9, 2004, alleging two grounds for relief.

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On December 29, 2004, the undersigned reviewed petitioner’s amended petition

and made the following observations:

Petitioner was advised to raise only the claim or claims presented

to the California Supreme Court on direct appeal. Petitioner was

directed to file a motion to stay along with his amended petition if

he wishes to stay this case while he exhausts additional claims in

state court. In the amended petition before the court, petitioner . . .

alleges two grounds for relief: (1) his conviction was obtained

through a confession that resulted from an unlawful custodial

interrogation, and (2) his conviction was obtained in violation of

the protection against double jeopardy. Petitioner has not filed a

motion to stay the action.

Although petitioner has deleted his unexhausted claim of

ineffective assistance of counsel, he has not deleted his double

jeopardy claim. In his original petition and his amended petition,

he describes only one claim raised in the California Supreme

Court. (See Pet. & Amended Pet. at page (3), describing the single

claim presented to the California Supreme Court on direct appeal.)

The amended petition may be a mixed petition containing one

exhausted claim and one unexhausted claim. On the present

record, the court is unable to determine whether petitioner has

alleged only exhausted claims. The amended petition will be

served on respondents so that a record can be made.

(Order filed Dec. 29, 2004, at 2.)

RESPONDENTS’ MOTION

In their answer, respondents assert that the only claim petitioner has presented to

the California Supreme Court involved the allegation that his conviction was obtained through

the admission of an unlawful confession. (Resp’ts’ Answer at 2 & 15.) In support of this

assertion, respondents have lodged a copy of the petition for review that was submitted to the

California Supreme Court. Petitioner has not disputed respondents’ argument or evidence.

In light of petitioner’s failure to comply with the court’s November 8, 2004 order

and his lack of opposition to respondents’ motion, the court will dismiss the amended petition as

a mixed petition and grant petitioner leave to file a second amended petition alleging only the

exhausted claim concerning petitioner’s confession. (See Order filed Nov. 8, 2004, at 2-5.) 

Petitioner is advised that the second amended petition submitted to the court for filing must

include a proof of service showing that he served a copy on respondents’ counsel. 

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Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner’s December 9, 2004 amended petition is dismissed as a mixed

petition filed in violation of the court’s order filed November 8, 2004;

2. Petitioner is granted thirty days to file with the court and serve on respondents’

counsel a second amended petition that contains only petitioner’s exhausted claim concerning his

confession; petitioner’s second amended petition must bear the docket number assigned to this

case and must be labeled “Second Amended Petition;

3. Respondents shall file and serve an answer to petitioner’s second amended

petition within thirty days after the second amended petition is served; and

4. Petitioner’s traverse, if any, shall be filed with the court and served on

respondents’ counsel within thirty days after respondents’ answer is served.

DATED: June 27, 2005.

DAD:13

will2284.lta

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