Mitchell v. Valenzuela

• Decision Date: 01 July 2015
• Docket Number: No. 12–55041.,12–55041.
• Citation: 791 F.3d 1166
• Parties: Keith Andrew MITCHELL, Petitioner–Appellant, v. Elvin VALENZUELA, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

791 F.3d 1166

Keith Andrew MITCHELL, Petitioner–Appellant

v.Elvin VALENZUELA, Warden, Respondent–Appellee.

No. 12–55041.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 8, 2014.

Filed July 1, 2015.

Sean Kennedy, Federal Public Defender, Michael David Weinstein (argued), Assistant Federal Public Defender, and Mark Raymond Drozdowski, Deputy Federal Public Defender, Federal Public Defender's Office, Los Angeles, CA, for Petitioner–Appellant.

Kamala Harris, Attorney General, Dane Gillette, Chief Assistant Attorney General, Lance Winters, Senior Assistant Attorney General, Michael Johnsen, Supervising Deputy Attorney General, Kim Aarons (argued) and Ana Duarte, Deputy Attorneys

General, Office of the California Attorney General, Los Angeles, CA, for Respondent–Appellee.

Appeal from the United States District Court for the Central District of California, R. Gary Klausner, District Judge, Presiding. D.C. No. 2:08–cv–00562–RGK–FFM.

Before: HARRY PREGERSON, KIM McLANE WARDLAW, and MARSHA S. BERZON, Circuit Judges.

OPINION

BERZON, Circuit Judge:

A magistrate judge denied petitioner Keith Andrew Mitchell's motion to stay and abey his 28 U.S.C. § 2254 habeas corpus petition while he exhausted some of his claims in state court. We hold that, in the context of a section 2254 habeas petition, this type of motion is generally (but not always) dispositive as to the unexhausted claims. When it is dispositive, a magistrate judge is without authority to “hear and determine” such a motion, but rather must submit a report and recommendation to the district court. 28 U.S.C. § 636(b)(1)(A)-(B).

I.

Keith Andrew Mitchell was convicted of first degree murder at a jury trial in California state court. He was sentenced to fifty years to life in prison. On direct appeal, Mitchell, represented by counsel, raised several claims challenging the trial court's jury instructions. The California Court of Appeal and California Supreme Court denied relief.

Proceeding pro se, Mitchell then filed his first federal habeas petition. The state moved to dismiss the petition for failure to exhaust some of the claims, and Mitchell voluntarily dismissed the petition without prejudice so he could exhaust his state remedies.

Still within the statute of limitations, 28 U.S.C. § 2244(d)(1), and proceeding pro se, Mitchell then filed a second federal habeas petition, at issue in this case, asserting five due process claims. Three of the claims corresponded to the arguments he had presented to the California courts on direct appeal. The other two claims, both relating to a gang sentencing enhancement, had been asserted in the first federal petition. The new petition was referred to a magistrate judge, authorized by the district court “to consider preliminary matters and conduct all further hearings as may be appropriate or necessary,” and thereafter to issue a report and recommendation to the judge.

The state once again moved to dismiss the petition, arguing that the two gang claims were not exhausted. As a result, the state argued, the petition was “mixed,” and the only proper resolutions were either to strike the unexhausted claims or to dismiss the entire petition.

Mitchell responded by filing a motion to stay the case to allow him to exhaust the two claims, citing Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). He represented that he had already filed state habeas petitions regarding the two claims, and that he had reasonably relied on his appointed attorney in the state proceedings to raise all of his potential claims on direct appeal. The state opposed the motion, arguing that there was no evidence Mitchell actually had filed any state habeas petition.

The magistrate judge issued an order addressing both the motion to dismiss and the motion to stay. Although Mitchell had not filed an opposition to the motion to dismiss, the magistrate judge concluded that Mitchell's motion to stay “impliedly concede[d] that at least one of his claims is unexhausted.” The magistrate judge also reviewed the record and concluded that the two gang claims had not been raised in the state direct appeals and that Mitchell had offered no proof that the alleged state habeas petitions had been filed. As a result, the magistrate judge concluded, the motion to dismiss was “well taken.”

As for the motion to stay, the magistrate judge noted that Rhines requires a showing of good cause for the failure to exhaust claims in state court. He found that a stay would be “inappropriate” in this case, as Mitchell had dismissed his prior petition “specifically to exhaust his state remedies with respect to the two unexhausted claims” also asserted in the current petition, yet “took no action to exhaust those claims.”

The magistrate judge then returned to the motion to dismiss, noting that, as a mixed petition not eligible for a stay under Rhines, the petition was “subject to dismissal.” The magistrate judge granted Mitchell leave to amend his petition to remove the unexhausted claims and indicated that, if Mitchell declined to do so, the magistrate judge would “issue a recommendation that the Petition be dismissed without prejudice for failure to exhaust.”

Mitchell did move to remove “all unexhausted claims” from his petition. The magistrate judge granted Mitchell's motion and denied the motion to dismiss as moot.

Subsequently, the magistrate judge issued a report and recommendation to the district judge regarding the pared-down petition. In discussing the case's procedural history, the magistrate judge noted that he had previously denied Mitchell's stay motion for lack of good cause, had granted Mitchell's motion to dismiss his unexhausted claims, and had denied the state's motion to dismiss as moot. On the merits of the remaining three claims, the magistrate judge recommended that the court deny relief. Mitchell objected, also on the merits of the three exhausted claims.

After de novo review, the district court adopted the report and recommendation and dismissed the petition with prejudice. The district court did not address the denial of the stay motion at all. Mitchell timely appealed.

We granted a certificate of appealability, see 28 U.S.C. § 2253(c), as to “whether the magistrate judge exceeded his authority by issuing, without the parties' consent, orders denying appellant's motion for a stay and abeyance, dismissing two of appellant's claims, and denying as moot appellee's motion to dismiss.”

II.

The authority of magistrate judges “is a question of law subject to de novo review.” United States v. Carr, 18 F.3d 738, 740 (9th Cir.1994).

“The power of federal magistrate judges is limited by 28 U.S.C. § 636.” Estate of Conners by Meredith v. O'Connor, 6 F.3d 656, 658 (9th Cir.1993) (citing Reynaga v. Cammisa, 971 F.2d 414, 416 (9th Cir.1992) ); see also Flam v. Flam, 788 F.3d 1043, 1046, No. 12–17285, 2015 WL 3540771 at *2 (9th Cir. June 8, 2015). Pursuant to section 636, magistrate judges may hear and determine nondispositive matters, but not dispositive matters, in § 2254 proceedings. Hunt v. Pliler, 384 F.3d 1118, 1123 (9th Cir.2004). Dispositive matters are those listed in section 636(b)(1)(A), as well as “analogous” matters. See Flam, 788 F.3d at 1046, 2015 WL 3540771 at *2 ; United States v. Rivera–Guerrero, 377 F.3d 1064, 1067 (9th Cir.2004) ; accord PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 13 (1st Cir.2010) ; Vogel v. U.S. Office Prods. Co., 258 F.3d 509, 515 (6th Cir.2001).¹ “To determine whether a motion is dispositive, we have adopted a functional approach that looks to the effect of the motion, in order to determine whether it is properly characterized as dispositive or non-dispositive of a claim or defense of a party.” Flam, 788 F.3d at 1046, 2015 WL 3540771 at *2 (internal quotation marks and alteration omitted). As to any dispositive matter, the magistrate judge is authorized, absent consent, only to issue a report and recommendation to the district judge, who in turn must undertake de novo review.²

Mitchell argues that the magistrate judge overstepped his authority by denying the motion to stay and abey his petition pending exhaustion.³ We agree.

“[W]here the denial of a motion to stay is effectively a denial of the ultimate relief sought, such a motion is considered dispositive, and a magistrate judge lacks the authority to ‘determine’ the matter.” S.E.C. v. CMKM Diamonds, Inc., 729 F.3d 1248, 1260 (9th Cir.2013) (citing Reynaga, 971 F.2d at 416–17 ). By contrast, a motion to stay is nondispositive where it “[does] not dispose of any claims or defenses and [does] not effectively deny ... any ultimate relief sought.” Id.

CMKM Diamonds fell into the latter, nondispositive category. In that case, a Securities and Exchange Commission civil enforcement action, one of the defendants moved to stay the civil proceedings until a related criminal case had concluded. Id. at 1251, 1254. A magistrate judge denied the motion, and we held the magistrate judge within his authority in doing so. Id. at 1260. The defendant had “simply speculated that he might have stronger evidence to support his position in the civil proceedings if he was able to go through the criminal proceedings first.” Id. Such speculation, we held, was insufficient to establish that the denial of a stay would either “dispose of any claims or defenses” or “effectively deny him any ultimate relief sought.” Id. The magistrate judge was therefore empowered to hear and determine the matter. Id.

In so holding, CMKM Diamonds cited the rule established by our prior decision in Reynaga. The prisoner plaintiff in Reynaga filed a pro se lawsuit under 42 U.S.C. § 1983, alleging that the judge, district attorneys, and public defender involved in his state criminal case had denied him a fair trial. 971 F.2d at 415. The case was referred to a magistrate judge, who determined that the defendants were immune from money damages and that the injunction sought—namely early release from prison—could only be...