Argued and Submitted, Pasadena, California: December
Appeal from the United States District Court for the Central District of California. D.C. No. 2:07-cv-08390-MMM-JC. Margaret M. Morrow, District Judge, Presiding.
Vacating the district court's judgment dismissing a habeas corpus petition and remanding, the panel held that the petitioner's motion to stay and abey his 28 U.S.C. § 2254 habeas petition in order to exhaust in state court a claim that was not yet part of his federal habeas petition was dispositive of that new unexhausted claim, such that the magistrate judge was without authority to hear and determine the motion, but rather was required to submit a report and recommendation to the district court.
The panel rejected the petitioner's argument that the magistrate judge lacked authority to grant his request to remove two unexhausted claims from his petition.
Mark Raymond Drozdowski, Deputy Federal Public Defender, Michael David Weinstein (argued), Assistant Federal Public Defender, and Raj Shah, Certified Law Student, Federal Public Defender's Office, Los Angeles, California, for Petitioner-Appellant.
Kamala Harris, Attorney General, Lance Winters, Senior Assistant Attorney General, Michael Johnsen, Supervising Deputy Attorney General, and Kim Aarons (argued) and Ana R. Duarte, Deputy Attorneys General, Office of the California Attorney General, Los Angeles, California for Respondent-Appellee.
Before: Harry Pregerson, Kim McLane Wardlaw, and Marsha S. Berzon, Circuit Judges. Opinion by Judge Berzon.
BERZON, Circuit Judge:
Mitchell v. Valenzuela, filed today, holds that a motion to stay and abey a 28 U.S.C. § 2254 habeas corpus petition to exhaust claims in state court is generally (but not always) dispositive of the unexhausted claims, and that a magistrate judge therefore generally cannot hear and determine such a motion. Mitchell v. Valenzuela, No. 12-55041, 791 F.3d 1166, *2 (9th Cir. July 1, 2015). In Mitchell, the petitioner sought a stay in order to exhaust claims that were already part of his petition. Here, the petitioner, Pablo Bastidas, moved to stay and abey his petition while he exhausted a claim that was not yet a part of his federal habeas petition. We hold that Bastidas's motion was likewise dispositive of that new unexhausted claim, such that the magistrate judge was without authority to " hear and determine" it, but rather was required to submit a report and recommendation to the ...