FILED
NOT FOR PUBLICATION AUG 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
REYNANTE PRE, No. 08-55957
Petitioner - Appellant, D.C. No. 3:07-cv-00890-W-WMC
v.
MEMORANDUM *
VICTOR M. ALMAGER, Warden; BILL
LOCKYER, Attorney General of the State
of California,
Respondents - Appellees.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted August 4, 2010 **
Pasadena, California
Before: REINHARDT and SILVERMAN, Circuit Judges, and SINGLETON,
Senior District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
Reynante Pre, a California state prisoner, appeals the district court’s denial
of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction for
attempted voluntary manslaughter, mayhem, torture, robbery, and burglary. Pre
submitted a “mixed petition” containing both exhausted and unexhausted claims.
District courts “must dismiss . . . ‘mixed petitions,’ leaving the prisoner with the
choice of returning to state court to exhaust his claims or of amending or
resubmitting the habeas petition to present only exhausted claims to the district
court.” Rose v. Lundy, 455 U.S. 509, 510 (1982). Alternatively, in some
circumstances, a district court may stay a mixed petition and hold it in abeyance
while the petitioner returns to state court. See Rhines v. Weber, 544 U.S. 269, 277
(2005). A district court may not do what the district court did here—dismiss only
the unexhausted claims and proceed to adjudicate the merits of the exhausted
portion of the petition.
The state argues that a district court may deny unexhausted claims on the
merits “when it is perfectly clear that the applicant does not raise even a colorable
federal claim.” Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). True, but
here the district court did not deny the unexhausted claims on the merits; it denied
those claims solely for lack of exhaustion. We therefore may not reach the merits
of the petition.
On remand, if the district court does not deny the unexhausted claims under
Cassett, it shall advise appellant that he may move to amend his petition to delete
his unexhausted claims. See Jefferson v. Budge, 419 F.3d 1013, 1016 (9th Cir.
2005). Should he then wish to exhaust those claims, he may request that the
district court stay his amended petition and hold it in abeyance while he does so.
See King v. Ryan, 564 F.3d 1133, 1138-40 (9th Cir. 2009).
VACATED and REMANDED.