Free Notice - District Court of Connecticut - Connecticut

Case 3:03-cv-00676-WWE

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Filed 12/19/2003

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

EMMANUEL B. SMITH, JR., Petitioner PRISONER CASE NO. 3:03cv676 (RNC) v. JOHN TARASCIO, et al., Respondents SECOND NOTICE TO PETITIONER On November 25, 2003, the court issued a notice to petitioner informing him that as a result of the Court's November 10, 2003 Ruling, he had two options: "(1) withdrawing his unexhausted claims and proceeding on the exhausted claim only, or (2) having the court dismiss all the claims without prejudice." Not. to Pet. at 1. The court notified the petitioner that

if he withdraws the unexhausted claims in order to proceed on the exhausted claim at this time, with the intention of presenting the unexhausted claims to this court after they have been exhausted, he will run the risk that any such subsequent petition presenting those claims might be subject to dismissal as a second or successive petition. See 28 U.S.C. 2244(b). If on the other hand, he chooses to have the court dismiss all claims in the petition without prejudice, there will be no such risk. Id. (emphasis added). December 8, 2003. The court has received petitioner's response to the court's November 10, 2003 Ruling indicating that he would like to proceed on the exhausted claim and withdraw the unexhausted claims. The This notice was not docketed until

Case 3:03-cv-00676-WWE

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response is dated December 5, 2003.

Because it is evident that

the petitioner did not receive the court's November 25, 2003 Notice prior to filing his response, the court issues this second notice. The petitioner is directed to file a notice with the court indicating whether he chooses to proceed only as to the exhausted claim and to withdraw the unexhausted claims1 or whether he chooses to have the court dismiss all claims without prejudice to re-filing after he has exhausted all of this claims. The court

again cautions the petitioner that if he chooses to proceed only as to the exhausted claim, "with the intention of presenting the unexhausted claims to this court after they have been exhausted, he will run the risk that any such subsequent petition presenting those claims might be subject to dismissal as a second or successive petition. See 28 U.S.C. 2244(b)." Id. The notice

shall be filed within thirty days of the date of this order. SO ORDERED this 19th day of December, 2003, at Bridgeport, Connecticut.

__________/s/___________________ Holly B. Fitzsimmons United States District Judge

If the petitioner chooses to proceed only as to the exhausted claim, he must file an amended petition including that claim. He may contact the Clerk's Office for the appropriate amended petition form. 2

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