concurring.
Petitioner in this case timely filed her first federal habeas petition on December 28, 1998. The district court ruled that her petition included federal claims which had not been fairly presented to the state’s highest court. Appropriately, the magistrate judge assigned the case by the district court twice identified unexhausted claims and warned her that absent dismissal of those claims, the petition would be dismissed without prejudice under Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). Twice petitioner chose to withdraw those unexhausted claims. After finding the petition fully exhausted, the magistrate judge recommended dismissal on the merits. The district court adopted the report and recommendation of the magistrate and dismissed the petition.
Whichever interpretation the language of certificate of appealability one chooses,1 the result is the same: the petition must be denied. Here the petitioner was properly given the opportunity to withdraw exhausted claims and did so. At no time did the petitioner ask the court to hold the exhausted claims in abeyance. Consequently there can be no abuse of discretion for failure to adopt the “withdrawal-and-abeyance” procedures where the petitioner has not sought such procedures. Here the petitioner failed to file the motion to hold in abeyance and that is fatal. I therefore concur on the panel’s decision to affirm the district court.