Greenberger v. Farmon

34 F. App'x 355

Opinions

MEMORANDUM

Footnotes

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The district court required Karen D. Greenberger to withdraw unexhausted claims from her petition for habeas corpus, which contained both exhausted and unexhausted claims, or suffer dismissal of the petition. She did the former, and now appeals. We affirm.

In the certificate of appealability for this matter, we limited the issue to “whether the district court abused its discretion by failing to consider holding a mixed petition in abeyance, given that petitioner may be barred from refiling by the AEDPA’s statute of limitations.” The clear answer to that question is no. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982) (“[A] district court must dismiss habeas petitions containing both unexhausted and exhausted claims.”); Calderon v. U.S. Dist. Court (Gordon), 107 F.3d 756, 760 (9th Cir.1997) (“Because [the] amended habeas corpus petition undisputably contained unexhausted state claims, dismissal of the federal petition was required.”).

We recognize that the district court must first give a pro se petitioner the opportunity to withdraw the unexhausted claims. See James v. Pliler, 269 F.3d 1124, 1125 (9th Cir.2001); Tillema v. Long, 253 F.3d 494, 503-04 (9th Cir.2001); James v. Giles, 221 F.3d 1074, 1077 (9th Cir.2000). That, however, is not the question delineated in the certificate of appeal-ability. In any event, the district court did give Greenberger that opportunity, and she took advantage of it. Thus, we must affirm the district court.¹

AFFIRMED.

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.

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. Of course, we express no opinion about what the course of events might be if Greenberger tries to return to the district court with some newly exhausted claims at some later time. We sit to decide concrete cases; not to engage in vaticination.

1

. See Scherbovitsch v. Mayle, No. 00-55399, 2002 WL 847998 (9th Cir.2002) (Shea, J., dissenting).