Beagles v. Miller-Stout

125 F. App'x 159

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 4, 2005
• Docket: No. 02-36004; D.C. No. CV-02-00203-MJP
• Status: Published

Opinion

MEMORANDUM

**

Washington state prisoner Ronald G. Beagles appeals pro se the district court’s dismissal without prejudice of his 28 U.S.C. § 2254 habeas petition, challenging his 1998 conviction for second degree assault. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we vacate and remand.

After the district court determined that the instant § 2254 petition was a mixed petition, the district court erred by affirmatively foreclosing the option of proceeding with the exhausted claim and requesting a stay. See Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Kelly v. Small, 315 F.3d 1063, 1069-70 (9th Cir.2003) (requiring district court to offer petitioner the opportunity to dismiss unexhausted claims, and to consider the alternative of staying the petition after dismissal of unexhausted claims, in order to permit petitioner to exhaust those claims and add them by amendment to his stayed federal petition); cf. Pliler v. Ford, 542 U.S. 225, 124 S.Ct. 2441, 2447, 159 L.Ed.2d 338 (2004) (holding that district court is not required to give specific advisements as to the availability and wisdom of these alternatives).

VACATED AND REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.