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Case 2:13-cv-02724-VBF-RZ Document 11 Filed 07/31/13 Page 1 of 4 Page ID #:31

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES -- GENERAL

Case No.

CV 13-02724-VBF

Dated:

July 31, 2013

Title:

Tyler Jenkins, Petitioner v. M. Biter (Warden), Respondent

PRESENT: HONORABLE VALERIE BAKER FAIRBANK, U.S. DISTRICT JUDGE

Linda Kanter
Courtroom Deputy

N/A
Court Reporter

ATTORNEYS PRESENT FOR PETITIONER:

ATTORNEYS PRESENT FOR DEFENDANTS:

N/A

N/A

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,

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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).1
Accord Jackson v. Dormire,180 F.3d 919, 920 (8th Cir. 1999) (before dismissing a mixed habeas petition, the

1
See, e.g., Mosley v. Walker, 623 F. Supp.2d 1078, 1086 (C.D. Cal. 2009) (Collins, C.J.) (“On December
18, 2008, this Court found the initial petition to be a ‘mixed’ petition containing an unexhausted claim, Ground
Two, and on January 5, 2009, petitioner filed a request to strike Ground Two, which the Court granted.”); Wilson
v. Almager, 2008 WL 5397428, *2 (C.D. Cal. Dec. 22, 2008) (King, J.) (“[U]nless petitioner elects to proceed
on his exhausted claim only, the Motion to Dismiss should be granted to the extent it seeks dismissal of the
Petition without prejudice without prejudice based upon the ‘mixed’ nature of the Petition.”); Ramirez v.
Runnels, 2010 WL 4628510, *8 (C.D. Cal. Nov. 8, 2010) (Wu, J.) (“Ordinarily . . . the district court must apply
the total exhaustion rule and dismiss a mixed petition. In this event, the court must provide the petitioner with
the choice of returning to state court to exhaust his claims or amending the habeas petition to present only
exhausted claims in the district court.”) (citations omitted).

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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. App’x 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.

ORDER

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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,2 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.3

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.

2
See Cox v. State of California, 2013 WL 3755956 (C.D. Cal. July 16, 2013) (Fairbank, J.);

Swanson v. Clark, 2009 WL 3489388, *2 (C.D. Cal. Oct. 26, 2009) (Fairbank, J.) (“Petitioner is
cautioned that failure to timely file a first-amended petition asserting only completely exhausted grounds may
be construed as his consent to dismissal of this action.”);

Soderstrom v. Kramer, 2009 WL 699950, *9-*10 (C.D. Cal. Mar. 12, 2009) (Fairbank, J.) (“Petitioner
is advised that he may choose to strike the unexhausted claims, i.e., grounds one through twenty-six and ground
thirty. * * * Petitioner is explicitly cautioned that failure to timely comply . . . may result in a recommendation
that this action be dismissed with prejudice for failure to prosecute, pursuant to Federal Rule of Civil Procedure
41(b), or . . . that the petition be dismissed as a mixed petition.”) (internal citation omitted) (emphasis added).

3
See, e.g., Elijah v. Valenzuela, 2013 WL 3819456, *1 (C.D. Cal. July 23, 2013) (Fitzgerald, J.) (“[T]he
Magistrate Judge gave petitioner an opportunity to cure the defects by granting him leave to file a first amended
petition that only raised exhausted claims.”); Brown v. Keblis, 2011 WL 6433308, *1 (C.D. Cal. Dec. 16, 2011)
(Carter, J.) (“It is ordered that, as the Petition is ‘mixed,’ and as Petitioner has not amended his petition to delete
his unexhausted claims . . . or otherwise notified the Court that he has abandoned / voluntarily dismissed such
claims by the deadline . . . , . . . the Petition is dismissed and Judgment is to be entered accordingly.”); Alonso
v. Biter, 2013 WL 57711, *4 (E.D. Cal. Jan. 4, 2013) (Oberto, M.J.) (“Petitioner has been given an opportunity
to withdraw the unexhausted claims and to proceed on the fully exhausted claims; however, Petitioner failed to
withdraw the unexhausted claims. The Court must thus dismiss the petition without prejudice.”).

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