Waldron v. Galaza

20 F. App'x 651

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 21, 2001
• Docket: No. 00-56693; D.C. No. CV-00-06849-NM
• Status: Published

Opinion

MEMORANDUM

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California prisoner Tracey M. Waldron appeals pro se the district court’s dismissal without prejudice of his 28 U.S.C. § 2254 petition for writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and reverse and remand.

Waldron contends the district court erred by dismissing his petition without providing him leave to amend. We review the district court’s decision to deny a 28 U.S.C. § 2254 petition de novo. See Bri-biesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir .2000).

The government concedes it was error for the district court to dismiss Waldron’s petition without first providing him with either the opportunity to amend his mixed petition by striking the unexhausted state claims or staying the matter pending exhaustion of his state claims. See Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000), cert, denied, — U.S. —, 121 S.Ct. 2576, 150 L.Ed.2d 739 (2001) (citing Calderon v. United States Dist. Ct. (Taylor), 134 F.3d 981, 986 (9th Cir.1998)).¹

REVERSED 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 9 th Cir. R. 36-3.

1 . We have reviewed and correspondingly rejected the government's mootness argument. See 28 U.S.C. §§ 2244(b)(1), 2254(b)(1).