1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 DOMINIC MIXONGIVENS, BC9846, Case No. 21-cv-05520-CRB (PR)

10 Petitioner, ORDER OF DISMISSAL 11 v.

12 WARREN L. MONTGOMERY, Warden, 13 Respondent.

14 Petitioner, a state prisoner at Calipatria State Prison (CAL), filed a pro se petition for a writ 15 of habeas corpus under

challenging a conviction from Santa Clara County 16 Superior Court based on two federal claims: (1) juror misconduct and (2) insufficiency of the 17 evidence. But petitioner exhausted state judicial remedies only as to the second claim. 18 On August 19, 2021, the court dismissed petitioner’s mixed petition – a petition containing 19 both exhausted and unexhausted claims – without prejudice and, pursuant to the law of the circuit, 20 asked petitioner whether he wished to (1) withdraw his unexhausted claim and proceed only on his exhausted claim, or (2) dismiss the entire mixed petition and return to federal court with a new 21 petition once all claims are exhausted. The court also informed petitioner that he may be able to 22 seek a stay of the proceedings “if he can show that there was good cause for his failure to exhaust 23 the unexhausted claim in state court, and that the claim is potentially meritorious.” Aug. 19, 2021 24 Order at 2 n.1 (citing Rhines v. Webber,

(2005)). The court asked petitioner to 25 respond within 28 days and warned him that “[f]ailure to respond within the designated time will 26 result in the dismissal of the entire mixed petition without prejudice to filing a new federal petition 27 containing only exhausted claims.” Id. at 2. ] It has been 40 days since the court’s August 19, 2021 order and petitioner has neither 2 || responded to the order nor requested an extension of time to do so. The instant mixed petition 3 accordingly is DISMISSED without prejudice to filing a new federal petition containing only 4 || exhausted claims. 5 The clerk shall close the file and terminate all pending motions as moot. 6 IT ISSO ORDERED. 7 || Dated: September 29, 2021 TK 8 CHARLES R. BREYER 9 United States District Judge 10 1] 12

15 16

17

Z 18 19 20 21 22 23 24 25 26 27 28