Insyxiengmay v. Morgan

20 F. App'x 674

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 24, 2001
• Docket: No. 01-35036; D.C. No. CV-00-05500-RJB
• Status: Published

Opinion

MEMORANDUM

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Washington state prisoner Oloth Insyxi-engmay appeals from the district court’s dismissal without prejudice of his 28 U.S.C. § 2254 habeas petition as unex-hausted. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the district court’s dismissal of a § 2254 petition, see Jiminez v. Rice, 222 F.3d 1210, 1212 (9th Cir.2000), and we reverse and remand.

Our opinions in Anthony v. Cambra, 236 F.3d 568 (9th Cir.2000), and James v. Giles, 221 F.3d 1074 (9th Cir.2000), require that prisoners who file mixed petitions must be given an opportunity to strike their unexhausted claims and either amend or resubmit their petitions so as to relate back to the date of their original filing. Anthony, 236 F.3d at 573; James, 221 F.3d at 1075-78. Because the district court did not provide Insyxiengmay with such an opportunity, we reverse and remand consistent with our opinions in Anthony and James.

REVERSED and REMANDED.¹

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

1 . Insyxiengmay raises a variety of other claims for which no certificate of appealability was granted. Because the district court did not have the initial opportunity to consider these claims, we will not consider them now.