Joseph Hunt v. Cheryl Pliler, Warden Csp-Sac Cal Terhune, Director of the CDC California Department of Corrections California State Attorney General

Joseph Hunt appeals the dismissal with prejudice of his habeas corpus petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2258, and we vacate and remand because the district court failed to proceed in conformity with 28 U.S.C. § 686 .

FACTUAL AND PROCEDURAL BACKGROUND

On April 22, 1987, Joseph Hunt was convicted by a jury of the murder and robbery of Ronald Levin, and the special circumstance of robbery. He was sentenced to life in prison without possibility of parole. After unsuccessfully challenging his conviction in the state court system, Hunt on August 31, 1998, filed in the district court, pro se, a First Amended Habeas Petition. Respondents moved to dismiss, contending that many of Hunt’s claims were not exhausted. There ensued a tortuous procedural hegira, which we now review.

On November 22, 1999, the magistrate judge issued a document styled “Memorandum and Order Re Respondent’s Motion to Dismiss.” He found that of the seventy-one claims presented in the First Amended Petition, twenty-seven were fully exhausted, five were partially exhausted, thirty-six were unexhausted, and three did not state a federal claim. He concluded that “unless Petitioner elects to…