June 28, 2013
CHRISTOPHER BROUSSARD, Petitioner,
PEOPLE OF THE STATE OF CALIFORNIA, ET AL., Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED
MANUEL L. REAL, District Judge.
The Court agrees with the Magistrate Judge that this 28 U.S.C. § 2254 habeas corpus petition is ultimately subject to dismissal without prejudice because it is "mixed, " i.e., it contains both exhausted and unexhausted claims. See R&R at 2-3. For reasons explained below, however, the Court does not dismiss the action at this juncture. The Court therefore (1) accepts the findings in the Report but (2) modifies the Report's recommended disposition.
The Ninth Circuit recently reaffirmed that while "[f]ederal courts may not adjudicate mixed habeas petitions, " nonetheless "we have explained that a petitioner who files a mixed petition must, at a minimum, be offered leave to amend the petition to delete any unexhausted claims and to proceed on the exhausted claims." Cf. Henderson v. Johnson, 710 F.3d 872, 873 (9th Cir. 2013). Henderson reviewed a summary dismissal of a less than fully-exhausted petition, not a dismissal that followed a Magistrate Judge's Report and an opportunity for Petitioner's objections. Nonetheless, the case suggests that the prudent course for a court presented with a "mixed" petition - once the court has accepted the Magistrate Judge's proposed finding that the petition indeed is mixed - is to offer the petitioner leave to file an amended petition to omit the unexhausted claim or claims.
The Court accepts the Report's finding that the petition is mixed. In lieu of dismissing the action at this time, as recommended in the Report, the Court orders as follows.
Within 30 days of the filing date of this Order, petitioner may file an amended petition which deletes the unexhausted claim (Claim 3) and contains only the exhausted claims (1, 2 and 4). If Petitioner fails to file such an amended petition by that deadline, his entire petition will be dismissed without prejudice for failure to exhaust available state-court remedies.
IT IS SO ORDERED.