Larry v. Carey

56 F. App'x 790

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 13, 2003
• Docket: No. 98-56461; D.C. No. CV-97-02649-WMB
• Status: Published

Opinion

MEMORANDUM

**

Michael Larry appeals pro se the district court’s dismissal of his habeas corpus petition. We stayed this appeal pending the issuance of a decision in James v. Pliler, 269 F.3d 1124 (9th Cir.2001). James holds that a district court was required, prior to dismissing a pro se habeas petition that contains both exhausted and unexhausted claims: (1) to provide the petitioner with an opportunity to amend his petition by deleting unexhausted claims and (2) to advise the petitioner of his right to amend the petition. Id. at 1126-27. Because the district court did not provide petitioner with the opportunity to delete his unexhausted claims and did not advise him of his right to do so, we must vacate the judgment and remand for further proceedings consistent with James.

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 may be provided by Ninth Circuit Rule 36-3.