Peter Gonzales Olvera v. G.J. Giurbino, Warden

We are called upon to review a district court’s dismissal of a § 2254 habeas corpus petition containing both exhausted and unexhausted claims for relief. State prisoner Peter Gonzales Olvera filed in the United States District Court a mixed habe-as corpus petition containing unexhausted claims. Olvera filed a motion stating that only eleven days remained before the statute of limitations would run and requesting that the district court permit him to withdraw his unexhausted claims, stay the petition, and allow him to return with the withdrawn claims after exhausting state remedies. The district court denied his motion and ultimately dismissed the petition because it contained unexhausted claims. We reverse.

The district court denied a certificate of appealability (“COA”), but we granted a COA identifying two issues: (1) whether the district court erred in denying petitioner’s motion to stay the proceedings in his 28 U.S.C. § 2254 case pending exhaustion of his claims; and (2) whether the district court erred in dismissing petitioner’s 28 U.S.C. § 2254 petition without prejudice, as “mixed,” after the statute of limitations for refiling under the Antiterrorism and Effective Death…