Anderson

MEMORANDUM *

At the time Tim Michael Anderson filed his mixed habeas petition with the district court, in February 1999, the Supreme Court required petitioners to either amend their mixed habeas petition and drop unexhausted claims or voluntarily withdraw their entire petition and pursue unexhausted claims in state court. See Rose v. Lundy, 455 U.S. 509, 510 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982). Given these options, Anderson chose to abandon grounds seven, eight, and ten of his amended petition and grounds two, four, and five of his statement of additional claims and proceed with the remainder of his exhausted claims. Following our holding in Kelly v. Small, 315 F.3d 1063 (9th Cir.2003), Anderson contends that his case should be remanded because the district court failed to consider staying his mixed habeas petition.

The government concedes that we might properly remand this case to the district court for consideration under the Supreme Court’s recent holding in Rhines v. Weber, — U.S. —, 125 S.Ct. 1528 , 161 L.Ed.2d 440 (2005), but it urges us to dismiss this appeal because the district judge properly followed the law at the time Anderson abandoned his claims. This argument…