Gutierrez

1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 4 JOSE ELIAS GUTIERREZ, Case No. 20-cv-06805-YGR (PR)

Petitioner, ORDER OF DISMISSAL WITHOUT

PREJUDICE

v.

J. GASTELO, Warden, Respondent.

The instant action was originally before the Honorable Lucy H. Koh, and was subsequently reassigned to the undersigned. Dkt. 26. This is a habeas case filed pro se by a state prisoner. In the initial review order dated February 22, 2021, Judge Koh noted that the petition appeared to be mixed, that is, that it contained both exhausted and unexhausted issues. Dkt. 17. Judge Koh explained that the Court could not adjudicate a petition containing unexhausted claims, and it was “reluctant” to dismiss the petition as a mixed petition “without giving petitioner the opportunity to elect whether to try to exhaust his claims before this Court considers petitioner’s claims.” Id. at 2 (citing Rose v. Lundy, 455 U.S. 509, 522 (1982) (general rule is that a federal district court must dismiss a federal habeas petition…