NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 31 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANASTACIO G. RAMIREZ, No. 21-55770

Petitioner-Appellant, D.C. No. 2:18-cv-03628-PSG-ADS v.

MARTIN GAMBOA, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted July 15, 2024 Pasadena, California

Before: PAEZ and SANCHEZ, Circuit Judges, and LYNN,** Senior District Judge.

Anastacio Ramirez appeals the district court’s denial of his petition for a

writ of habeas corpus under 28 U.S.C. § 2254. The certified issue on appeal is

whether the magistrate judge exceeded her authority in determining that Ramirez’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barbara M. G. Lynn, United States Senior District Judge for the Northern District of Texas, sitting by designation. April 30, 2018, petition was a mixed petition, subject to dismissal under Rose v.

Lundy, 455 U.S. 509 (1982), which resulted in Ramirez’s voluntary dismissal of

two of his claims. We have jurisdiction to review the appeal under 28 U.S.C.

§§ 1291 and 2253. We affirm.

Ramirez was convicted by a jury in California state court of two counts of

unlawful acts with a child 10 years old and younger, and one count of continuous

sexual abuse. On April 30, 2018, Ramirez, acting pro se, filed a Petition for Writ

of Habeas Corpus, under 28 U.S.C. § 2254, in the Central District of California,

seeking relief on four grounds: (1) ineffective assistance of trial counsel, arguing

that the victim recanted and that Ramirez had been tricked into admitting guilt;

(2) trial and appellate counsel’s failure to take certain actions, (3) appellate

counsel’s failure to file a timely notice of appeal; and (4) a violation of Ramirez’s

rights under the Confrontation Clause of the Sixth Amendment.

The case was referred to a magistrate judge for pretrial matters. On June 4,

2018, Respondent Scott Frauenheim,1 Warden of Pleasant Valley State Prison,

appeared and move to dismiss the Petition as mixed or to strike Grounds One and

Four as unexhausted. The next day, the magistrate judge issued an order in which

she preliminarily found that Grounds One and Four of the Petition were

1 On November 16, 2022, Martina Gamboa, Acting Warden of Avenal State Prison, was substituted as Appellee–Respondent following a change in the place of Ramirez’s incarceration.

2 unexhausted. She also told Ramirez that if he believed the Petition to be fully

exhausted, he was to provide “any additional argument and documents supporting

[his] claim of exhaustion.”

In addition to affording him the opportunity to establish exhaustion, the

magistrate judge gave Ramirez the following options: (1) voluntarily dismiss the

Petition without prejudice to exhaust Grounds One and Four; (2) dismiss Grounds

One and Four and proceed with the remaining exhausted claims; (3) seek a stay of

the case pursuant to Rhines v. Weber, 544 U.S. 269, 275–77 (2005); or (4) seek a

stay of the case pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). The

magistrate judge instructed Ramirez to file a response indicating his selection,

along with any argument as to whether the Petition was mixed. In response,

Ramirez voluntarily dismissed Grounds One and Four, and the magistrate judge

denied Respondent’s motion to dismiss as moot. The magistrate judge

subsequently entered a report, recommending that Ramirez’s Petition be denied,

which the district court accepted.

A petition filed under § 2254 shall not be granted unless the petitioner has

“exhausted the remedies available in the courts of the State,” and “fairly

present[ed]” the federal claims in state court. 28 U.S.C. § 2254(b)(1)(A); Duncan

v. Henry, 513 U.S. 364, 365 (1995) (per curiam). In Rose v. Lundy, 455 U.S.at

510, 522, the Supreme Court imposed a “total exhaustion” requirement, such that

3 district courts are required to dismiss without prejudice “mixed” petitions that

contain both exhausted and unexhausted claims.

On appeal, Ramirez argues that, in deciding the exhaustion issue and issuing

the “options order” offering Ramirez various choices, the magistrate judge

exceeded her authority. The authority of magistrate judges “is a question of law

subject to de novo review.” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir.

2015) (quoting United States v. Carr, 18 F.3d 738, 740 (9th Cir. 1994)).

The power of federal magistrate judges is limited by 28 U.S.C. § 636. See

Mitchell v. Valenzuela, 791 F.3d 1166, 1168 (9th Cir. 2015). Under § 636, a

district judge “may designate a magistrate judge to hear and determine any pretrial

matter pending before the court,” except for certain motions enumerated under

§ 636(b)(1)(A) and other analogous dispositive judicial functions. 28 U.S.C.

§ 636(b)(1)(A); Flam v. Flam, 788 F.3d 1043, 1046 (9th Cir. 2015). To determine

whether a motion is dispositive, we employ a “functional approach,” which looks

“to the effect of the motion, in order to determine whether it is properly

characterized as ‘dispositive or non-dispositive of a claim or defense of a party.’”

Flam v. Flam, 788 F.3d at 1046 (quoting United States v. Rivera–Guerrero, 377

F.3d 1064, 1068 (9th Cir. 2004)).

Preliminarily identifying a claim as “unexhausted” is not a dispositive

matter. The magistrate judge’s preliminary view that the Petition contained

4 unexhausted claims did not constitute a ruling on Respondent’s motion to dismiss,

so as to trigger an obligation to submit a report and recommendation to the district

court for review under § 636(b)(1)(A). The options order did not dispose of a

claim or defense of a party, or preclude the ultimate relief sought. See id. Instead,

the order offered options, including inviting Ramirez to demonstrate exhaustion or

seek a stay to be able to return to state court and perfect exhaustion. The inclusion

of these non-dispositive options distinguishes this case from this Circuit’s

precedent in Hunt v. Pliler, 384 F.3d 1118, 1124 (9th Cir. 2004), in which both

options presented to the petitioner in that case required the dismissal of at least

some claims. Thus, because the magistrate judge’s order giving Ramirez options

did not resolve or decide Respondent’s motion to dismiss, it was not a dispositive

order requiring a report and recommendation under § 636(b)(1)(A).

AFFIRMED.

5