Scherbovitsch

MEMORANDUM **

Walter Scherbovitsch appeals the dismissal of his petition for habeas corpus, which contained both exhausted and unexhausted claims. We affirm.

In the certificate of appealability for this matter, we limited the issue to “whether the district court abused its discretion by faffing to consider holding a mixed petition in abeyance, given that petitioner may be barred from refiling by the AEDPA’s statute of limitations.” The clear answer to that question is no. See Rose v. Lundy, 455 U.S. 509, 522 , 102 S.Ct. 1198, 1205 , 71 L.Ed.2d 379 (1982) (“[A] district court must dismiss habeas petitions containing both unexhausted and exhausted claims.”); Calderon v. U.S. Dist. Court (Gordon), 107 F.3d 756, 760 (9th Cir.1997) (“Because [the] amended habeas corpus petition undisputably contained unexhausted state claims, dismissal of the federal petition was required.”). That, of necessity, disposes of Scherbovitsch’s claim that the court did not rule on his motion to stay the mixed petition — it simply could not rule in his favor.

We recognize that the district court must first give a pro se petitioner the opportunity to withdraw the unexhausted claims. See James v. Pliler,…

dissenting.

Petitioner in this case timely filed his first federal habeas petition on April 23, 1999. The district court ruled that his petition included both “exhausted” federal claims and “unexhausted” federal claims, that is some claims which had not been fairly presented to the state’s highest court. As such, the petition mixed exhausted and unexhausted claims. On De *354 cember 9, 1999, well after AEDPA’s one year statute of limitations had run, 1 the magistrate judge issued a report and recommendation concluding that this “mixed” petition should be dismissed without prejudice under Rose v. Lundy, 455 U.S. 509, 522 , 102 S.Ct. 1198, 1205 , 71 L.Ed.2d 379 (1982).

Seherbovitseh had moved for a stay, under Fetterly v. Paskett, 997 F.2d 1295, 1299 (9th Cir.1993), prior to the Report and Recommendation of the magistrate judge. The magistrate judge had advised Seherbovitseh that he could amend his petition to delete the unexhausted claims. The magistrate judge did not rule on Scherbovitsch’s motion for stay but did state, “[i]f the Petitioner chooses to withdraw claims numbers 1, 2 and 3 from the present petition, he should be aware that he cannot raise those claims at a later…