govinfo:USCOURTS-cand-4_25-cv-00286-1

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United States District Court 
Northern District of California 
 
 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
 
TOBY ANTHONY ROSA, 
Petitioner, 
v. 
 
MARTIN GAMBOA, Warden, 
Respondent. 
 
Case No. 25-cv-00286-YGR (PR) 
 
ORDER OF DISMISSAL WITHOUT 
PREJUDICE 
 
 
 
This is a habeas case filed pro se by a state prisoner. In the initial review order dated April 
30, 2025, Magistrate Judge Nathanael M. Cousins noted that the petition appeared to be mixed, 
that is, that it contained both exhausted and unexhausted issues. Dkt. 9 at 3. Judge Cousins 
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 “one opportunity to 
provide clarification as to what claims he wishes to pursue in this action,” including the 
opportunity to elect whether to try to exhaust his claims before this Court considers petitioner’s 
claims. Id. at 3-4 (citing Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding that the general rule is 
that a federal district court must dismiss a federal habeas petition containing any claim as to which 
state remedies have not been exhausted)). Judge Cousins further directed petitioner to file within 
twenty-eight days a “notice that either (1) all the seven claims presented in the petition are 
exhausted; or (2) he wishes to strike the unexhausted claims . . . from the petition and proceed 
with the four cognizable claims . . . .” Id. at 4. Judge Cousins also offered petitioner another 
alternative if he wished to pursue the unexhausted claims by filing “in the same time provided . . . 
a motion for stay that satisfies the Rhines1 factors . . . , so that he can return to state court and 
 
1 Rhines v. Weber, 544 U.S. 269 (2005). 

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United States District Court 
Northern District of California 
exhaust the additional claims. Id. at 3-4. Judge Cousins warned petitioner as follows: 
Failure to file a timely response in accordance with this order 
will result in the reassignment of this matter to a district judge 
with the recommendation that it be dismissed as a mixed 
petition under Rose v. Lundy , 455 U.S. at 510, and without 
further notice to Petitioner. 
Id. at 5 (emphasis in original). 
The twenty-day time period passed, and petitioner failed to file a timely response or file 
any further communications with the Court. Thereafter, this action was reassigned to the 
undersigned judge. Dkts. 10, 11. Because petitioner has failed to make an election, the Court 
DISMISSES the petition as mixed. See Rose, 455 U.S. at 522. The dismissal is without prejudice 
to petitioner filing a new federal habeas action containing a petition with only exhausted claims. 
The Clerk of the Court shall terminate all pending motions and close the file. 
IT IS SO ORDERED. 
Dated: 
JUDGE YVONNE GONZALEZ ROGERS 
United States District Judge 
May 8, 2026

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