Pablo Bastidas v. Kevin Chappell

Mitchell v. Valenzuela, filed today, holds that a motion to stay and abey a 28 U.S.C. § 2254 habeas corpus petition to exhaust claims in state court is generally (but not always) dispositive of the unexhausted claims, and that a magistrate judge therefore generally cannot hear and determine such a motion. Mitchell v. Valenzuela, No. 12-55041, 791 F.3d 1166, 1167 , 2015 WL 3980746 , at 1* (9th Cir. July 1, 2015). In Mitchell , the petitioner sought a stay in order to exhaust claims that were already part of his petition. Id. 791 F.3d at 1167 , at *1. Here, the petitioner, Pablo Bastidas, moved to stay and abey his petition while he exhausted a claim that was not yet a part of his federal habeas petition. We hold that Bastidas’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. 28 U.S.C. § 636 (b)(1)(A)-(B). We also reject Bastidas’s argument that the magistrate judge lacked authority to grant Bast-idas’s request to remove two unexhausted claims from his petition.

I.

Pablo Bastidas was convicted…