Ford

*878 OPINION

Richard Herman Ford, a California prisoner, appeals the district court’s dismissal of his two habeas corpus petitions as time-barred under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254 (d). Both federal habeas petitions were initially timely filed in the district court by Ford proceeding pro se; however, both were “mixed” petitions containing exhausted as well as unexhausted claims. Along with the mixed petitions, Ford filed motions to stay each of them while he exhausted the then-unexhausted claims in state court. The district court gave him the option with respect to both petitions of either dismissing the unex-hausted claims and proceeding only with the exhausted claims or dismissing the petitions without prejudice and re-filing after exhaustion of the unexhausted claims. The district court did not, however, inform Ford that it would not have the power to consider his motions to stay the petitions unless he opted to amend them and dismiss the then-unexhausted claims. See James v. Pliler, 269 F.3d 1124, 1126-27 (9th Cir.2001); Calderon v. District Court (Taylor), 134 F.3d 981, 989 (9th Cir.1998). Although the magistrate’s orders…

dissenting:

Ford filed an improper mixed petition. The district court correctly offered him the option of either amending the petition by deleting the unexhausted claims and proceeding with only those that had been exhausted, or suffering the dismissal of his entire petition without prejudice. This is exactly what a district court is supposed to do. James v. Pliler, 269 F.3d 1124, 1125-26 (9th Cir.2001). When Ford did not express a choice, the district court again did exactly what it was supposed to do: It dismissed Ford’s mixed petition without prejudice. Rose v. Lundy, 455 U.S. 509, 510 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982); James v. Pliler, 269 F.3d at 1125 .

Ford never appealed the dismissal of that petition. (He still hasn’t.) What he did instead was go back to state court and exhaust his remaining claims. He eventually returned to federal court and filed the new petitions that are the subject of this appeal. By that time, the statute of limitations had run and the petitions were dismissed as time-barred.

This was precisely the situation we upheld in Green v. White, 223 F.3d 1001 (9th Cir.2000). Green’s first, timely petition was dismissed without prejudice “apparently…