Hunt v. Pliler
| Decision Date | 05 June 2003 |
| Docket Number | No. 01-56963.,01-56963. |
| Citation | 336 F.3d 839 |
| Parties | Joseph HUNT, Petitioner-Appellant, v. Cheryl PLILER, Warden CSP-Sac; Cal Terhune, Director of the CDC; California Department of Corrections; California State Attorney General, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Eric S. Multhaup, Mill Valley, CA, for the petitioner-appellant.
Richard B. Cullather, Deputy Attorney General, for the respondents-appellees.
Appeal from the United States District Court for the Central District of California; William D. Keller, District Judge, Presiding. D.C. No. CV-98-05280-WDK.
Before D.W. NELSON and T.G. NELSON, Circuit Judges, and SCHWARZER,* Senior District Judge.
Joseph Hunt appeals the dismissal with prejudice of his habeas corpus petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we vacate and remand because the district court failed to proceed in conformity with 28 U.S.C. § 636.
On April 22, 1987, Joseph Hunt was convicted by a jury of the murder and robbery of Ronald Levin, and the special circumstance of robbery. He was sentenced to life in prison without possibility of parole. After unsuccessfully challenging his conviction in the state court system, Hunt on August 31, 1998, filed in the district court, pro se, a First Amended Habeas Petition. Respondents moved to dismiss, contending that many of Hunt's claims were not exhausted. There ensued a tortuous procedural hegira, which we now review.
On November 22, 1999, the magistrate judge issued a document styled "Memorandum and Order Re Respondent's Motion to Dismiss." He found that of the seventy-one claims presented in the First Amended Petition, twenty-seven were fully exhausted, five were partially exhausted, thirty-six were unexhausted, and three did not state a federal claim. He concluded that "unless Petitioner elects to move for leave to file a Second Amended Petition containing only exhausted claims, this Court will be required to dismiss the entire action without prejudice." The magistrate judge further advised that "Petitioner risks forfeiture of the unexhausted claims ... if he elects to file a Second Amended Petition containing only exhausted claims and later attempts to file a second federal habeas action after exhausting his state remedies." Rather than issuing a report and recommendation for district court review, as required by 28 U.S.C. § 636(b)(1)(B), the magistrate judge issued an order granting time to file a motion for leave to file a Second Amended Petition containing only exhausted claims or, alternatively, a request for voluntary dismissal without prejudice. He warned that failure to timely file a motion for leave to file such a petition "shall be construed as either his consent to dismissal of the action for failure to prosecute or disobedience with a Court Order warranting the dismissal of the action with prejudice pursuant to Fed. R.Civ.P. 41(b)."
On December 8, 1999, Hunt filed an application directed to the district judge, for an order extending the time within which to file a Second Amended Petition pending resolution of his objections to the magistrate judge's order filed concurrently. Hunt objected to the November 22 order on the grounds that "the Magistrate wrongfully found nonexhaustion as to several issues."
The district judge ruled neither on Hunt's objections nor on his application for an extension of time. Instead, on December 20, the magistrate judge issued an order stating that
On July 20, 2000, the magistrate judge issued an order responding to what he referred to as "timely Objections ... to the magistrate judge's non-dispositive Memorandum and Order ... filed November 22, 1999." The order stated that objections to the magistrate judge's rulings on exhaustion "are reserved and are subject to further review by [the district judge]." Nonetheless, the order directed that "if Petitioner wishes to proceed in this matter" he must file a motion for leave to file a Second Amended Petition by August 18, 2000. The order advised Hunt that if he elected to stand on his First Amended Petition the case could not proceed further since it was based on a mixed petition. Further, the order warned that the magistrate judge would recommend to the district judge that the First Amended Petition be dismissed without prejudice as a mixed petition.
On July 31, 2000, Hunt again directed objections to the district judge, reasserting his objections to the November 22 order as well as to the July 20 order. He argued that if he were to file a Second Amended Petition before the court ruled on his objections it might moot his objections because the claims would no longer be pending before the court. The district judge did not rule on the objections, but on August 11, the magistrate judge issued an order extending until October 2, 2000, Hunt's time to file a motion for leave to file a Second Amended Petition along with a petition "complying with the magistrate judge's November 22, 1999, Memorandum and Order and July 20, 2000, Order Re Petitioner's Objections," and denying the application for clarification of the July 20 order.
Meanwhile, on February 23, 2000, Hunt had filed another state habeas corpus petition with the California Supreme Court to obtain confirmation that all his federal claims had previously been presented to that court and thus had been exhausted. On August 9, 2000, the California Supreme Court denied Hunt's habeas petition by order stating:
Following receipt of the Supreme Court's order, Hunt, on September 8, 2000, filed an application directed to the district judge and the magistrate judge to vacate the magistrate judge's earlier nonexhaustion findings in light of the Supreme Court's August 9 order. Hunt argued that the citations to In re Waltreus and In re Miller are "an explicit determination by the California Supreme Court that they view the sum total of what Petitioner presented to them as a relitigation of claims Petitioner has previously presented to them." The court's rejection of his petition, Hunt argued, confirmed that his claims were exhausted prior to his first federal filing.
On September 14, the magistrate judge denied Hunt's application, stating that "[p]etitioner's assertion that he exhausted his unexhausted claims by presenting them to the California Supreme Court subsequent to commencing this action is irrelevant to this Court's prior determination that the First Amended Petition contains unexhausted claims," citing Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir.1999), and Brown v. Maass, 11 F.3d 914, 915 (9th Cir.1993), appeal after remand, 46 F.3d 1139 (9th Cir.1995). The order reminded Hunt that he had until October 2 to file a motion for leave to file a Second Amended Petition.
On December 19, the district judge denied Hunt's request to vacate the magistrate judge's September 14 order, ruling that "Petitioner ... cannot rely on a later-filed state habeas petition to exhaust claims that were not exhausted at the time his federal petition was filed." The order gave Hunt until January 16, 2001, to file a motion for leave to file a Second Amended Petition.
On January 18, 2001, Hunt lodged a proposed Second Amended Petition, including all but one of the claims previously found to be unexhausted plus a number of new claims, contending that the Supreme Court's order confirmed that they had all been exhausted. Hunt simultaneously lodged a Third Amended Petition, which he contended contained only exhausted claims, and requested it be held in abeyance pending adjudication of the Second Amended Petition. On January 31, 2001, the magistrate judge, declining to follow this court's recent decision in Anthony v. Cambra, 236 F.3d 568(9th Cir.2000), cert. denied, 533 U.S. 941, 121 S.Ct. 2576, 150 L.Ed.2d 739 (2001), denied leave to amend on the ground that under earlier Ninth Circuit decisions exhaustion must be established "before coming to federal district court." The magistrate judge gave Hunt until February 20, 2001, to move for leave to file a Third Amended Petition containing only exhausted claims or, alternatively, to stand on his First Amended Petition containing unexhausted claims, which would lead to a recommendation to dismiss. Failure to pursue either course, the magistrate judge advised, would be construed as either consent to dismissal for failure to prosecute or disobedience of the court's order warranting dismissal with prejudice. The magistrate judge did not inform Hunt of the stay and abey procedure.
On February 23, 2001, Hunt objected to the magistrate judge's January 31 order disposing of the Second Amended Petition, contending he was entitled to district court review of dispositive orders pursuant to 28 U.S.C. § 636(b). Further, he applied for an order permitting him to make an election as to how he would proceed after the district judge reviewed his objections to the January 31 order denying leave to file the Second Amended Petition. The district judge never acted on this application.
On March 26, the magistrate judge issued a Report and Recommendation, recommending that Hunt's request for a stay pending adjudication of his objections to the January 31 order (denying leave to file a Second Amended Petition) be denied, that the First Amended Petition be dismissed as a mixed petition, and that the action be dismissed with prejudice for...
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