Ford

Opinion by Judge REINHARDT. Dissent by Judge SILVERMAN.

ORDER

The majority opinion filed September 6, 2002, and appearing at 305 F.3d 875 (9th Cir.2002), is hereby amended as follows:

With these amendments, the panel has voted to deny the petition for panel rehearing and the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. Fed. R.App. P. 35.

The petition for rehearing and the suggestion for rehearing en banc are DENIED.

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…

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, *1108 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…