CIVIL MINUTES - GENERAL Case No. 2:23-cv-03929-FWS (SK) Date July 19, 2023 Title Kurtis King v. People of The State of California

Present: The Honorable Steve Kim, United States Magistrate Judge Connie Chung n/a Deputy Clerk Court Smart / Recorder Attorneys Present for Petitioner: Attorneys Present for Respondent: None present None present Proceedings: (IN CHAMBERS) SECOND ORDER TO SHOW CAUSE In June 2023, the Court ordered Petitioner to show cause why his

habeas petition should not be dismissed for lack of exhaustion as a mixed petition. (ECF 4). In response, Petitioner admitted he has not exhausted his ineffective assistance of counsel claim in state court because he believed he would not receive a fair review. (ECF 6 at 1–2). But his belief that the state courts somehow impeded his ability seek justice does not excuse his failure to exhaust the claim he now seeks to bring in federal court. (Id. at 5). Indeed, this Court has no discretion to consider an unexhausted claim on habeas review. See Rose v. Lundy,

(1982). So long as both his claims are joined in the same federal petition, the unexhausted claim makes the entire petition “mixed” and subject to dismissal. See

(b)(1)(A); Rose, 455 U.S. at 518–19 (1982); see also Rhines v. Weber,

, 274–75 (2005). For these reasons, on or before Wednesday, August 16, 2023, Petitioner must exercise one of two options and inform the Court accordingly: 1. File an amended petition that deletes his unexhausted claim. See Butler v. Long,

(9th Cir. 2014). The First Amended Petition must be complete in itself without reference to the original petition. or 2. Voluntarily dismiss the petition (using attached Form CV-09) and refile after he has exhausted all his claims, provided the statute of limitations under CIVIL MINUTES - GENERAL Case No. 2:23-cv-03929-FWS (SK) Date July 19, 2023 Title Kurtis King v. People of The State of California

If Petitioner does not comply with this Order, the Court will recommend involuntary dismissal of the petition for failure to prosecute or obey court orders. See Fed. R. Civ. P. 41(b); L.R. 41-1. IT IS SO ORDERED.