Bastidas v. Chappell, No. 12-55024 (9th Cir. 2015)
Annotate this CasePetitioner moved to stay and abey his petition while he exhausted a claim that was not yet a part of his federal habeas petition. The court held that petitioner’s motion was likewise dispositive of that new unexhausted claim, such that the magistrate judge was without authority to “hear and determine” it, but rather was required to submit a report and recommendation to the district court. Further, the court rejected petitioner’s argument that the magistrate judge lacked authority to grant petitioner's request to remove two unexhausted claims from his petition. Accordingly, the court vacated the district court's dismissal of the habeas corpus petition and remanded for further proceedings.
Court Description: Habeas Corpus. Vacating the district court’s judgment dismissing a habeas corpus petition and remanding, the panel held that the petitioner’s motion to stay and abey his 28 U.S.C. § 2254 habeas petition in order to exhaust in state court a claim that was not yet part of his federal habeas petition was dispositive of that new unexhausted claim, such that the magistrate judge was without authority to hear and determine the motion, but rather was required to submit a report and recommendation to the district court. The panel rejected the petitioner’s argument that the magistrate judge lacked authority to grant his request to remove two unexhausted claims from his petition.
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