The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION, AND DENYING MOTION TO DISMISS
Respondent moved to dismiss Petitioner Garcia's amended petition for writ of habeas corpus as untimely under the Antiterrorism and Effective Death Penalty Act (AEDPA). Garcia filed his original petition on October 27, 2008. Because it included both exhausted and unexhausted claims, the Court dismissed it pursuant to Rose v. Lundy, 455 U.S. 509, 510 (1982), giving Garcia leave to amend it in order to omit the unexhausted claims. The Court found the "stay and abeyance" procedure inappropriate, because Garcia's unexhausted claims were meritless. After several extensions, Garcia filed his amended petition on April 30, 2009. Respondent then moved to dismiss it as untimely. Although the original petition was timely, the amended petition was filed after AEDPA's 1-year limitations period.
The motion was referred to Magistrate Judge William McCurine for a report and recommendation pursuant to Fed. R. Civ. P. 72 and 28 U.S.C. § 636. Judge McCurine issued his report and recommendation (the "R&R") on October 12, 2010, recommending denying the motion. Respondent filed his objections on October 29 and Garcia filed his reply to the objections on December 6.
A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." Id.
Garcia argues his amended petition relates back to his original petition. Respondent in turn argues that because that petition was dismissed, there is nothing for the amended petition to relate back to. (Obj. to R&R, 2:3--4 ("'[R]elation back' has meaning only in the context of amendments to existing pleadings . . . ")) In his motion to dismiss, Respondent cited Rasberry v. Garcia, 448 F.3d 1150 (9th cir. 2006), and he now cites Libberton v. Ryan, 583 F.3d 1147 (9th Cir. 2009).
Neither of those cases presents an analogous situation. Rather, the facts of Anthony v. Cambra, 236 F3d 568 (9th Cir. 2000) are analogous and that holding controls. In Anthony, the district court had dismissed a mixed habeas petition containing one exhausted and five unexhausted claims, and the petitioner filed an amended petition raising his exhausted claim. The district court determined it should have given the petitioner a chance to amend his petition, rather than dismissing it outright, and ordered that the amended petition should be treated as if it were filed as of the date of the original petition. The respondent appealed, raising the issue of timeliness because the amended petition was filed after AEDPA's 1-year limitations period had expired. The respondent argued the amended petition should be considered a new petition because the original petition had been dismissed.
In Anthony, the district court realized that a petitioner who files a mixed petition should be given an opportunity to amend the petition before dismissal. "Because the court's dismissal 'did not afford petitioner such an opportunity,' construing the [later-filed] petition as an amendment-as opposed to new (and time-barred) petition-was, in the court's view, the appropriate remedy." 236 F.3d at 573. The Ninth Circuit affirmed the district court's decision:
[W]e agree with the district court that its outright dismissal of Anthony's [original] petition was improper. This court has made clear that district courts must provide habeas litigants with the opportunity to amend their mixed petitions by striking unexhausted claims as an alternative to suffering dismissal.
Id. at 574. The correctness of this ruling was later confirmed in Rhines v. Weber: if a petitioner presents a district court with a mixed petition and the court determines that stay and abeyance is inappropriate, the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief. 544 U.S. 269, 278 (2005) (citing Rose, 455 U.S. at 520).
Rasberry cites Anthony and confirms that, under the circumstances presented there, it remains good law. 448 F.3d at 1155 ("[I]n Anthony, the district court exercised its equitable power to accept the new petition nunc pro tunc to the date of the original habeas filing-the district court had mistakenly dismissed the first petition, so it corrected the mistake by relating the second petition back to the first.") Rasberry itself deals with a different situation, where the original petition was wholly unexhausted and the amended petition presented new claims.
In this case, after Garcia filed his original petition and was told it appeared to be mixed, he asked for stay and abeyance, and Respondent asked for dismissal outright. Neither party suggested an order requiring amendment on pain of dismissal, but in view of Anthony's holding the Court is now convinced that was the required course. In short, rather than dismissing the petition outright, the Court should have ordered Garcia to amend his complaint to delete the unexhausted claims, or face dismissal. Only if he then failed or refused to amend should his original petition have been dismissed.
In order to correct its error, see Rasberry, 448 F.3d at 1155 (noting court's equitable power to correct its own mistakes, and confirming Anthony permits this), the Court therefore reconsiders its order of August 26, 2009. That order is modified so that instead of dismissing the petition it requires Garcia to amend his petition or face dismissal. There is no reason to revisit the Court's orders extending time to file the amended petition. Because Garcia filed his amended petition within the time permitted, the amended petition relates back to the original petition.
The objections are therefore OVERRULED, the R&R is ADOPTED, and Respondent's motion to dismiss ...