Argued and Submitted, Pasadena, California: December
Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding. D.C. No. 2:08-cv-00562-RGK-FFM.
Vacating the district court's judgment dismissing a habeas corpus petition and remanding, the panel held that a motion to stay and abey a 28 U.S.C. § 2254 habeas petition to permit exhaustion of some of the petitioner's claims in state court is generally (but not always) dispositive as to the unexhausted claims, and that a magistrate judge therefore generally cannot hear and determine such a motion, but rather must submit a report and recommendation to the district court.
The panel held that the magistrate judge's order in this case was effectively dispositive of the unexhausted claims and, therefore, beyond his authority.
Sean Kennedy, Federal Public Defender, Michael David Weinstein (argued), Assistant Federal Public Defender, and Mark Raymond Drozdowski, Deputy Federal Public Defender, Federal Public Defender's Office, Los Angeles, California for Petitioner-Appellant.
Kamala Harris, Attorney General, Dane Gillette, Chief Assistant Attorney General, Lance Winters, Senior Assistant Attorney General, Michael Johnsen, Supervising Deputy Attorney General, Kim Aarons (argued) and Ana 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:
A magistrate judge denied petitioner Keith Andrew Mitchell's motion to stay and abey his 28 U.S.C. § 2254 habeas corpus petition while he exhausted some of his claims in state court. We hold that, in the context of a section 2254 habeas petition, this type of motion is generally (but not always) dispositive as to the unexhausted claims. When it is dispositive, a magistrate judge is without authority to " hear and determine" such a motion, but rather must submit a report and recommendation to the district court. 28 U.S.C. § 636(b)(1)(A)-(B).
Keith Andrew Mitchell was convicted of first degree murder at a jury trial in California state court. He was sentenced to fifty years to life in prison. On direct appeal, Mitchell, represented by counsel, raised several claims challenging the trial court's jury instructions. The California Court of Appeal and California Supreme Court denied relief.
Proceeding pro se, Mitchell then filed his first federal habeas petition. The state moved to dismiss the petition for failure to exhaust some of the claims, and Mitchell voluntarily dismissed the petition without prejudice so he could exhaust his state remedies.
Still within the statute of limitations, 28 U.S.C. § 2244(d)(1), and proceeding pro se, Mitchell then filed a second federal habeas petition, at issue in this case, asserting five due process claims. Three of the claims corresponded to the arguments he had presented to the California courts on direct appeal. The other two claims, both relating to a gang sentencing enhancement, had been asserted in the first federal petition. The new petition was referred to a magistrate judge, authorized by the district court " to consider preliminary matters and conduct all further hearings as may be appropriate or necessary," and thereafter to issue a report and recommendation to the judge.
The state once again moved to dismiss the petition, arguing that the two gang claims were not exhausted. As a result, the state argued, the petition was " mixed," and the only proper resolutions were either to strike the unexhausted claims or to dismiss the entire petition.
Mitchell responded by filing a motion to stay the case to allow him to exhaust the two claims, citing Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). He represented that he had already filed state habeas petitions regarding the two claims, and that he had reasonably relied on his appointed attorney in the state proceedings to raise all of his potential claims on direct appeal. The state ...