Scherbovitsch v. Mayle

34 F. App'x 353

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 2, 2002
• Docket: No. 00-55399; D.C. No. CV-99-04329-DDP
• Status: Published

Opinions

MEMORANDUM

**

Walter Scherbovitsch appeals the dismissal of his petition for habeas corpus, which contained both exhausted and unexhausted claims. We affirm.

In the certificate of appealability for this matter, we limited the issue to “whether the district court abused its discretion by faffing 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.”). That, of necessity, disposes of Scherbovitsch’s claim that the court did not rule on his motion to stay the mixed petition — it simply could not rule in his favor.

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 appealabilty, and, in any event, the district court did give Scherbovitsch that opportunity. 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.

1 . Of course, we express no opinion about what the course of events might be if Scherbovitsch 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.