Esli Alvarez v. M Knowles

FILED

NOT FOR PUBLICATION SEP 03 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESLI JOEL ALVAREZ, No. 10-55472

Petitioner - Appellant, D.C. No. 5:06-cv-00931-MMM- RC v.

M. KNOWLES, Warden, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Margaret M. Morrow, District Judge, Presiding

Argued and Submitted March 5, 2013 Pasadena, California

Before: HAWKINS, THOMAS, and HURWITZ, Circuit Judges.

Esli Joel Alvarez appeals the district court’s dismissal of his habeas corpus

petition. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. I

The district court did not abuse its discretion in denying the motion to stay

and abate.1 See Rhines v. Weber, 544 U.S. 269, 278 (2005) (describing standard).

“[A] district court must dismiss habeas petitions containing both unexhausted and

exhausted claims.” Rose v. Lundy, 455 U.S. 509, 522 (1982). A district court…

MEMORANDUM *

Esli Joel Alvarez appeals the district court’s dismissal of his habeas corpus petition. We affirm.

*808 I

The district court did not abuse its discretion in denying the motion to stay and abate. 1 See Rhines v. Weber, 544 U.S. 269, 278 , 125 S.Ct. 1528 , 161 L.Ed.2d 440 (2005) (describing standard). “[A] district court must dismiss habeas petitions containing both unexhausted and exhausted claims.” Rose v. Lundy, 455 U.S. 509, 522 , 102 S.Ct. 1198 , 71 L.Ed.2d 879 (1982). A district court has the discretion to “stay the petition and hold it in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims.” Rhines, 544 U.S. at 275 , 125 S.Ct. 1528 . However, the “stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust his claims first in state court.” Id. at 277 , 125 S.Ct. 1528 .

Before the district court, Alvarez identified two reasons for his failure to exhaust: (1) he was pro se; and (2) the prison in which he was housed was on lock down for much of the time he was there, and he only had limited access to materials. The district court thoroughly…

dissenting:

I respectfully dissent because the magistrate judge did not comply with the Federal Magistrate Judge Act and Federal Rule of Civil Procedure 72 in ordering Alvarez to amend his petition to remove unexhausted claims or have his petition dismissed, and the error deprived Alvarez of his right to district court review of a dis-positive order. See 28 U.S.C. § 636 . 1

The magistrate judge required Alvarez to amend his petition to remove grounds 5 through 10 or have his entire petition dismissed. That was a dispositive order that should have been presented to the district court for de novo review. Hunt v. Pliler, 384 F.3d 1118, 1123 (9th Cir.2004); 28 U.S.C. § 636 ; Fed.R.Civ.P. 72. The order was only mentioned in the magistrate judge’s report and recommendation long after the order was issued and the claims were removed, and it was never addressed by the district court.

“[T]he magistrate judge, instead of submitting proposed findings and recommendations, issued an order, not authorized by the statute, that required [Alvarez] to forfeit the claims [s]he found unexhausted or face dismissal of the entire petition.” Hunt, 384 F.3d at 1124 . This act was an abuse of discretion…