July 31, 2013
Tyler Jenkins, Petitioner,
M. Biter (Warden), Respondent.
VALERIE BAKER FAIRBANK, District Judge.
PROCEEDINGS (IN CHAMBERS): ORDER ADOPTING THE REPORT AND RECOMMENDATION AS MODIFIED, DECLINING TO DISMISS THE PETITION AT THIS JUNCTURE, PERMITTING PETITIONER TO AMEND THE PETITION TO DELETE UNEXHAUSTED CLAIMS, and ADVISING PETITIONER THAT THE PETITION WILL BE DISMISSED IF HE FAILS TO AMEND THE PETITION BY A DATE CERTAIN
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 1. For reasons explained below, however, the petition is not subject to dismissal at this juncture. The Court therefore adopts the well-reasoned Report and Recommendation, but with a modification.
It is true that "[o]nce a district court determines that a habeas petition contains only unexhausted claims... it may simply dismiss the habeas petition for failure to exhaust." Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); see also Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (once respondent moves to dismiss, the court is "obligated to dismiss immediately" if the petition contains no exhausted claims) (citing Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir. 1997)); see, e.g., Haynes v. Brazelton, 2013 WL 352132 (C.D. Cal. Jan. 29, 2013) (dismissing without prejudice a section 2254 petition which contained only unexhausted claims).
But the law is different where, as here, the petition contains at least one claim which the petitioner has properly exhausted in the state courts. 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." Henderson v. Johnson, 710 F.3d 872, 873 (9th Cir. 2013) (emphasis added) (citing, inter alia, Jefferson v. Budge, 419 F.3d 1013, 1016-17 (9th Cir. 2005) and Kelly v. Small, 315 F.3d 1063, 1069-70 (9th Cir. 2003) (same)); see also Ybarra v. McDaniel, 656 F.3d 984, 997-98 (9th Cir. 2011) ("When Ybarra returned to district court with unexhausted claims in his 2002 petition, the district court appropriately allowed him to avoid the harsh consequence of outright dismissal of the entire petition by abandoning the unexhausted claims.") (citation omitted), cert. denied, ___ U.S. ___, 133 S.Ct. 424 (2012); Wooten v. Kirkland, 540 F.3d 1019, 1026 (9th Cir. 2008) (quoting Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 1535 (2005)); Valerio v. Crawford, 306 F.3d 742, 770 (9th Cir. 2002) (citation omitted); Anthony v. Alhambra, 236 F.3d 568, 574 (9th Cir. 2000) ("[D]istrict courts must provide habeas litigants with the opportunity to amend their mixed petitions by striking unexhausted claims as an alternative to suffering dismissal.")) (emphasis added). Accord Jackson v. Dormire, 180 F.3d 919, 920 (8th Cir. 1999) (before dismissing a mixed habeas petition, the court must give the petitioner an opportunity to amend his petition to delete all claims except those which had been exhausted in the state courts before AEDPA's one-year limitations period expired).
This Court has consistently applied this rule. See, e.g., Swanson v. Clark, 2009 WL 3489388, *2 (C.D. Cal. Oct. 26, 2009) (Fairbank, J.) ("When a district court intends to dismiss a mixed petition, however, it must give a petitioner the choice of returning to state court to exhaust his [grounds] or of amending... the habeas petition to present only exhausted [grounds] to the district court.'") (quoting Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 1199 (1982)); Bautista v. Small, 2008 WL 5101920, *6 n.6 (C.D. Cal. Nov. 25, 2008) (Fairbank, J.) ("A federal habeas corpus petition that includes both exhausted and unexhausted claims is a mixed' petition, and the Court must dismiss it in its entirety without prejudice. But before doing so, a court must give the petitioner the opportunity to delete the unexhausted claim(s) and proceed with the exhausted claim(s). ") (citing James v. Giles, 221 F.3d at 1074, 1077 (9th Cir. 2000)) (emphasis added).
Indeed, the Ninth Circuit has repeatedly reversed when a district court dismisses a mixed habeas petition without first affording petitioner the opportunity to amend his petition to delete unexhausted claims. See Henderson, 710 F.3d at 873; Jefferson, 419 F.3d at 1016-17; Vang v. Nevada, 329 F.3d 1069, 1076 (9th Cir. 2003) (reversing in pertinent part and stating, "We remand the case to the district court so that it may give petitioner the opportunity to request dismissal of his unexhausted claims and continue in the district court or to accept the district court's dismissal of the mixed petition."); Kelly, 315 F.3d at 1069-70; James v. Pliler, 269 F.3d 1124, 1127 (9th Cir. 2001) ("Because the Court failed to provide James with an opportunity to amend his petition by deleting the unexhausted claims and explaining this possibility to him, we remand...."); Matthews v. Sullivan, 155 F.Appx. 864, 865 (9th Cir. 2006) ("It is error for a district court to dismiss a mixed habeas petition without first offering the petitioner the options provided in Rose v. Lundy .... Accordingly, we reverse the district court's judgment dismissing Matthews' habeas petition and remand so that Matthews may be provided with an opportunity to exercise his options under Rose. ").
The Report and Recommendation is ADOPTED as modified.
The Court DECLINES to dismiss the habeas corpus petition at this time.
No later than Friday, September 6, 2013, petitioner MAY FILE an amended petition which deletes all unexhausted claims and contains only exhausted claims.
Consistent with this Court's past practice,  the petitioner is CAUTIONED that if petitioner fails to file an amended petition by that deadline, his entire petition will be dismissed without prejudice - without further notice - for failure to exhaust available state-court remedies.
Likewise, if petitioner files an amended petition by the deadline but that amended petition fails to delete all unexhausted claims and/or asserts new unexhausted claims, his entire petition will be dismissed without prejudice - without further notice - for failure to exhaust available state-court remedies.
IT IS SO ORDERED.