Greenberger

MEMORANDUM **

The district court required Karen D. Greenberger to withdraw unexhausted claims from her petition for habeas corpus, which contained both exhausted and unexhausted claims, or suffer dismissal of the petition. She did the former, and now appeals. We affirm.

In the certificate of appealability for this matter, we limited the issue to “whether the district court abused its discretion by failing 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.”).

We recognize that the district court must first give a pro se petitioner the *356 opportunity to withdraw the unexhausted claims. See James v. Pliler, 269 F.3d 1124, 1125 (9th Cir.2001); Tillema v.…

concurring.

Petitioner in this case timely filed her first federal habeas petition on December 28, 1998. The district court ruled that her petition included federal claims which had not been fairly presented to the state’s highest court. Appropriately, the magistrate judge assigned the case by the district court twice identified unexhausted claims and warned her that absent dismissal of those claims, the petition would be dismissed without prejudice under Rose v. Lundy, 455 U.S. 509, 522 , 102 S.Ct. 1198, 1205 , 71 L.Ed.2d 379 (1982). Twice petitioner chose to withdraw those unexhausted claims. After finding the petition fully exhausted, the magistrate judge recommended dismissal on the merits. The district court adopted the report and recommendation of the magistrate and dismissed the petition.

Whichever interpretation the language of certificate of appealability one chooses, 1 the result is the same: the petition must be denied. Here the petitioner was properly given the opportunity to withdraw exhausted claims and did so. At no time did the petitioner ask the court to hold the exhausted claims in abeyance. Consequently there can be no abuse of discretion for failure to adopt…