          United States Court of Appeals
                       For the First Circuit


No. 98-1921, 99-1379

                        STEVEN J. NOWACZYK,

                       Petitioner, Appellant,

                                 v.

               WARDEN, NEW HAMPSHIRE STATE PRISON,

                       Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

      [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]


                              Before

              Torruella and Lipez, Circuit Judges,
             and Schwarzer,* Senior District Judge.


     William A. Hahn, with whom Hahn & Matkov was on brief, for
appellant.

     Nicholas Cort, Assistant Attorney General, with whom Philip T.
McLaughlin, Attorney General, was on brief, for appellee.



                          August 14, 2002


* Of the Northern District of California, sitting by designation.
             LIPEZ, Circuit Judge.          This is the latest in a steady

stream of cases involving the complex procedural requirements that

govern habeas corpus petitions filed under the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254.

This case differs from the norm, however, because the petition

before us does not suffer from any procedural flaw.                     It was filed

within   AEDPA's        one-year       statute        of        limitations,       see

id. § 2244(d)(1), and it contains only fully-exhausted claims, see

id. § 2254(b) and (c). Nevertheless, the district court refused to

address the merits of those claims and dismissed the petition
without prejudice because the petitioner, Steven Nowaczyk, was in

the process of adjudicating an additional claim -- one he had not
presented in his habeas petition -- in state court.                           AEDPA's
statute of     limitations     has   now     run    its    course,      meaning   that

Nowaczyk will be barred from filing a new petition if he cannot
proceed on the petition dismissed by the district court.                    Although
we conclude that the district court was not required to adjudicate

Nowaczyk's     claims    immediately,       we     hold    that    it    abused   its
discretion    in    dismissing   his    petition          rather   than     retaining
jurisdiction and entering a stay pending the outcome of the state

proceedings.

                                       I.

          In       December,   1994,    Nowaczyk          was   convicted    in   New

Hampshire state court on charges of arson, conspiracy to commit

arson, and witness tampering.           The New Hampshire Supreme Court

affirmed his conviction on direct appeal, entering its final

                                       -2-
judgment on January 24, 1997. Nowaczyk did not seek further review

from the United States Supreme Court.

          Under AEDPA, Nowaczyk had one year "from the date on
which [his conviction] became final by the conclusion of direct

review or the expiration of the time for seeking such review" in

which to pursue federal habeas relief under § 2254.       28 U.S.C.
§ 2244(d)(1)(A).   The parties agree that the one-year limitations

period began on April 24, 1997,1 which marks the end of the 90-day
period for filing a petition for writ of certiorari from the United

States Supreme Court.     See Donovan v. Maine, 276 F.3d 87, 91 (1st

Cir. 2002) ("[S]ection 2244(d)(1) provides for tolling during the

ninety-day period in which the petitioner would have been allowed

to ask the United States Supreme Court to grant certiorari to
review the [state court's] denial of his direct appeal (the fact

that the petitioner did not seek certiorari is immaterial).").

          The statute of limitations is tolled whenever "a properly
filed application for State post-conviction or other collateral

review with respect to the pertinent judgment or claim is pending."

28 U.S.C. § 2244(d)(2).   We have held that an application for state

post-conviction relief is "pending" -- and, thus, the statute of

limitations is tolled -- not only when the application "actually is

being considered by the trial or appellate court, but also during

the 'gap' between the trial court's initial disposition and the

petitioner's timely filing of a petition for review at the next


     1
      A chronology of the important dates in this case is set forth
in the appendix.

                                 -3-
level."     Currie v. Matesanz, 281 F.3d 261, 266 (1st Cir. 2002)

(internal quotation marks omitted); see also Carey v. Saffold, 122

S. Ct. 2134, 2136 (2002) (confirming the prevailing view that an
application remains pending between "a lower state court's decision

and the filing of a notice of appeal to a higher state court").

Such   tolling     enables   state    prisoners   to   comply    with    AEDPA's
exhaustion provisions, 28 U.S.C. § 2254(b) and (c), which require

them   to   give    state    courts   a   "full   opportunity"    to    address

constitutional claims before presenting those claims to a federal

court, O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

            Here, Nowaczyk filed his § 2254 petition in federal

district court on June 20, 1997, roughly two months after the

statute of limitations began to run.              The petition stated four
claims:     (1) that there was insufficient evidence to support his

conviction; (2) that the jury was permitted to consider prejudicial

evidence; (3) that he received ineffective assistance of counsel at
trial; and (4) that he was denied the right to a neutral judge both

at trial and on appeal.         Unlike the first three claims, Nowaczyk

had not raised the issue of judicial bias on direct appeal from his

state conviction.       In AEDPA parlance, therefore, that claim was

"unexhausted."      Perhaps anticipating that problem, Nowaczyk filed

an application for state post-conviction review on October 28,

1997, in which he presented his claim of judicial bias.                 He filed

a second such application on May 10, 1998, raising a claim of

double jeopardy that was not included in his § 2254 petition.




                                      -4-
            On July 22, 1998, the district court dismissed Nowaczyk's

§ 2254 petition without prejudice. The court noted that Nowaczyk's

first application for state post-conviction review was then pending
before the New Hampshire Supreme Court.              It concluded, therefore,

that Nowaczyk had failed to exhaust all available state remedies as

to his claim of judicial bias, and dismissed the § 2254 petition on
that ground.

            Nowaczyk filed a notice of appeal from the district

court's decision on July 24. Approximately one week later, on July

31, 1998,    the    New    Hampshire      Supreme   Court    entered      its   final

decision rejecting Nowaczyk's judicial bias claim.                     Citing that

decision, Nowaczyk asked the federal district court to reconsider

its judgment.      He argued that dismissal no longer was appropriate
now that all of the claims presented in his § 2254 petition were

fully exhausted.      The district court denied the motion by margin

order, reasoning that Nowaczyk's pending appeal before us rendered
his motion for reconsideration "moot."

            Nowaczyk then filed a motion in this court for summary

reversal.    We granted the motion, explaining that, "[e]ven though

[Nowaczyk's]    appeal      had    been    noticed    when       the   motion    [for

reconsideration] was filed, the motion was not entirely moot.                     The

district court still had authority to review the motion and to

notify   this      court    if    it   was    inclined      to    grant    relief."

Accordingly, we remanded to the district court so that it could

address the merits of Nowaczyk's motion for reconsideration.                       We

emphasized that the court should consider whether, given the time


                                       -5-
limitations imposed by AEDPA, dismissal still was appropriate in

Nowaczyk's case.

          On remand, the matter was referred to a magistrate judge,
see 28 U.S.C. § 636(b)(1)(B), who recommended that Nowaczyk's

motion for reconsideration be granted.2      The magistrate judge

reasoned that, since Nowaczyk's § 2254 petition was no longer
"mixed," but presented only exhausted claims, it was not subject to

dismissal.   He rejected the state's argument that dismissal was

warranted because Nowaczyk's second application for state post-

conviction review (raising the double jeopardy claim) still was

pending before the state courts. Although principles of comity and

judicial economy mandate dismissal of any unexhausted claims, see

Rose v. Lundy, 455 U.S. 509, 518-20 (1982), the magistrate judge
found those principles inapplicable in Nowaczyk's case, "since the

State courts have already had an opportunity to consider each of

the issues raised in the federal petition."     Because the claims
presented in Nowaczyk's § 2254 petition were fully exhausted and

properly before the district court, the magistrate judge concluded

that dismissal would be "inconsistent with the imperative that

underscores all habeas corpus proceedings:   ensuring that federal

constitutional claims may be reviewed promptly in a federal forum

if State remedies have been exhausted."       See Braden v. 30th

Judicial Cir. Ct., 410 U.S. 484, 490 (1973) (explaining that the

exhaustion doctrine reflects "a careful balance between important

     2
       The magistrate judge construed the motion as a motion to
alter or amend the judgment, filed under Rule 59(e) of the Federal
Rules of Civil Procedure.

                               -6-
interests of federalism and the need to preserve the writ of habeas

corpus as a swift and imperative remedy in all cases of illegal

restraint or confinement" (internal quotation marks omitted)).
            The    district      court    rejected   the   magistrate   judge's

recommendation and dismissed Nowaczyk's § 2254 petition without

prejudice.     The court agreed that Nowaczyk's petition presented
only exhausted claims.        However, it concluded that dismissal was

appropriate       because   of     the    pendency    of   Nowaczyk's    second

application for state post-conviction review.                That application

contained a challenge to the same conviction Nowaczyk sought to

overturn through the federal habeas proceedings, and "Nowaczyk did

not raise any unusual circumstances about the state court actions,

such   as    extraordinary       delay,    that   would    justify   concurrent
actions."     In the district court's view, the principles of comity

discussed in Rose counseled in favor of "defer[ring] to the state

court action" in such a case.
            The court then turned to the question of AEDPA's statute

of limitations.      It assumed, without deciding, that since Nowaczyk
had not attempted to appeal his conviction to the United States

Supreme Court, he was not entitled to the benefit of the 90-day

period for seeking a writ of certiorari.              Accordingly, the court

concluded that the statute of limitations began to run on January

24, 1997 -- the date of the New Hampshire Supreme Court's final

decision in Nowaczyk's direct appeal.

             The next question was the extent to which the statute of

limitations was tolled by Nowaczyk's various filings. The district


                                         -7-
court determined that Nowaczyk's § 2254 petition -- if dismissed

without prejudice on the ground of comity -- would not itself toll

the   limitations    period    for   any   subsequently-filed      petition.
However, under AEDPA, the statute of limitations would be tolled

whenever a state-court challenge to "the pertinent judgment or

claim" was pending.      28 U.S.C. § 2244(d)(2).          The parties agreed
that the statute was tolled during the pendency of Nowaczyk's first

application for state post-conviction review, which raised the

judicial bias claim presented in his § 2254 petition.                  The more

difficult question was whether his second application had a tolling

effect even though it concerned a claim that was not included in

the § 2254 petition.     The district court answered that question in

the affirmative, reasoning that the second application challenged
Nowaczyk's conviction -- "the pertinent judgment" for purposes of

his § 2254 petition -- and therefore satisfied AEDPA's tolling

provision.
           Thus, the court found that the statute of limitations had

run between January 24, 1997, and October 28, 1997 (when Nowaczyk

filed his first application for state post-conviction review), and

then was tolled by the (still pending) state proceedings.               Because

Nowaczyk would have "some time, but not the full year," to refile

his § 2254 petition at the conclusion of the state proceedings, the

district court concluded that dismissal still was appropriate.

Nevertheless,   it     ended   its   opinion   with   a    warning:       "Once

[Nowaczyk's] pertinent state court proceedings are concluded, the

limitations   period    will   again   begin   to   run   until   it    quickly


                                     -8-
expires.    Therefore, if issues remain at the conclusion of the

state court proceedings that are appropriate for habeas relief,

Nowaczyk should be mindful of the diminished limitation period that
remains."

            The district court entered judgment dismissing Nowaczyk's

petition without prejudice on March 9, 1999.        Nowaczyk promptly
appealed to this court.      On March 26, 1999, the New Hampshire

Supreme Court rejected Nowaczyk's double jeopardy claim.         That

decision marked the end of Nowaczyk's second application for state

post-conviction review, and therefore started AEDPA's statute of

limitations running once again.        The same day, Nowaczyk filed a

motion asking permission to supplement the record on appeal to

reflect the fact that he no longer had any claims pending before
the state courts.    We granted that motion by order dated April 28,

1999.

            After an initial round of briefing by the parties -- with
Nowaczyk still proceeding pro se -- it was apparent that one of the

issues on appeal was whether the district court erred in concluding

that Nowaczyk's § 2254 petition did not operate to toll AEDPA's

statute of limitations.    The Supreme Court had granted certiorari

to address that question in Duncan v. Walker, and we decided to

stay consideration of Nowaczyk's appeal until the Court issued its

opinion.

            The Supreme Court decided Duncan in June of 2001, holding

that the statute of limitations is tolled only by applications for

state post-conviction review, and that later-dismissed federal


                                 -9-
habeas petitions do not have any tolling effect.               533 U.S. 167,

181-82 (2001). The upshot of that decision for Nowaczyk was clear:

if we affirmed the dismissal of his § 2254 petition by the district
court in March of 1999, the fact that it had been pending before

the federal courts for roughly four years would have no impact on

the statute of limitations.          Absent equitable tolling, the AEDPA
one-year limitations period would have expired for Nowaczyk in

September of 2000, and any subsequent petition would be time

barred.

             Following the Supreme Court's decision in Duncan, we

appointed counsel for Nowaczyk, ordered supplemental briefing, and

scheduled oral argument.       We instructed counsel to focus on three

questions:      whether the district court erred in holding that
Nowaczyk's second application for state post-conviction review

tolled AEDPA's statute of limitations; whether the district court

abused    its   discretion     in    dismissing,    rather     than    staying,
Nowaczyk's § 2254 petition, given the statute of limitations

concerns;     and   whether,   if    we   concluded   that     dismissal     was

appropriate, Nowaczyk would be entitled to equitable tolling when

he attempted to refile his habeas petition.

             In its supplemental brief and again at oral argument, the

state conceded that Nowaczyk's second application for state post-

conviction review tolled the limitations period.               See Tillema v.

Long, 253 F.3d 494, 502 (9th Cir. 2001) (holding that "AEDPA's

period of limitation is tolled during the pendency of a state

application     challenging    the    pertinent    judgment,    even    if   the


                                     -10-
particular application does not include a claim later asserted in

the federal habeas petition"); accord Carter v. Litscher, 275 F.3d

663 (7th Cir. 2001) (same).      But see Austin v. Mitchell, 200 F.3d
391 (6th Cir. 1999) (adopting contrary view).            Accordingly, we

focus on the question whether the district court should have stayed

the federal proceedings rather than dismissing Nowaczyk's petition
outright.    We conclude that, under the circumstances of this case,

the district court abused its discretion in dismissing Nowaczyk's

§ 2254 petition.       Accordingly, we need not decide whether the

doctrine of equitable tolling is available under AEDPA generally,

see, e.g., Donovan, 276 F.3d at 92-93 (reserving the question),

and, if so, whether it would apply in this case.

                                   II.

            Before we can reach the issue of stay versus dismissal,

we first must address a threshold question: did the district court
err   in    delaying   its   decision     through   either   means?   Put
differently, was the court obligated to adjudicate Nowaczyk's

claims immediately?3     We turn to that question.

A.          Delay vs. Immediate Adjudication

            In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court

held that "mixed" § 2254 petitions -- that is, those containing

both exhausted and unexhausted claims -- must be dismissed for


      3
       We use the term "immediately" simply as shorthand for
proceeding in the normal course of federal adjudication, without
regard to the pending state proceedings. Similarly, we use the
term "delay" to refer to deferring federal proceedings until state
court proceedings are resolved.

                                   -11-
failure to exhaust state remedies.                The Court reasoned that such a

rule   would    "further[]         the     policy    of   comity    underlying      the

exhaustion doctrine."          Id. at 514.          Requiring "total exhaustion"
would "encourage state prisoners to seek full relief first from the

state courts, thus giving those courts the first opportunity to

review all     claims    of    constitutional         error."      Id.   at    518-19.
Moreover, "federal claims that have been fully exhausted in state

courts will more often be accompanied by a complete factual record

to aid the federal courts in their review."                    Id. at 519.

           The district court relied on that same policy of comity

as a basis for dismissing Nowaczyk's § 2254 petition.                    It reasoned

that, although the claims presented in the petition had been fully

exhausted,     the   fact     that       Nowaczyk    still   was   challenging       his
conviction in state court brought his case within Rose's purview.

The court observed that the comity doctrine not only "protect[s]

the state court's concurrent jurisdiction to enforce federal law";
it also "'prevent[s] disruption of state judicial proceedings' by

teaching that '"one court should defer action on causes properly
within its jurisdiction until the courts of another sovereignty

with concurrent powers, and already cognizant of the litigation,

have had an opportunity to pass on the matter."'"                    (Quoting Rose,

455 U.S. at 518 (quoting Darr v. Burford, 339 U.S. 200, 204

(1950)).       Because   the       state    courts    had    not   yet   had   a    full

opportunity     to   pass     on    one    of     Nowaczyk's    challenges     to    his

conviction -- the double jeopardy claim -- the district court felt




                                           -12-
itself bound to "defer action" on the related challenges contained

in the § 2254 petition.

           Nowaczyk argues that Rose does not support the district
court's decision to dismiss his petition.     He maintains that the

rule of total exhaustion is not based on avoiding parallel state-

federal proceedings.   Rather, Nowaczyk argues, Rose's core holding

was that federal courts should not grant relief on claims that have

not yet been presented to the state courts.    Consistent with that

view, Rose directed district courts to offer a choice to state

prisoners with mixed petitions: they could either accept dismissal

without prejudice and return to state court to exhaust the claims

presented in their § 2254 petitions, or they could amend those

petitions to remove any unexhausted claims.   See Rose, 455 U.S. at

510.   If the prisoner chose the latter option, the district court

would adjudicate the remaining (exhausted) claims immediately,

notwithstanding the fact that the other unexhausted claims might be
pending before the state courts at the same time.
           We agree that Rose does not require the district court to

withhold decision in cases such as Nowaczyk's.         See Hurd v.

Mondragon, 851 F.2d 324, 327-28 (10th Cir. 1988) (concluding that
Rose is not controlling where the state prisoner has exhausted his

state remedies on the claims presented in his § 2254 petition, but
he has other claims that have not been exhausted); Jones v. Parke,

734 F.2d 1142, 1145 (6th Cir. 1984) (same).   If anything, it points

in the opposite direction.   Rose held that a state prisoner who has

both exhausted and unexhausted claims can obtain prompt federal

                                -13-
review of the exhausted claims if he files a mixed petition and

then amends it to remove the unexhausted claims.    See 455 U.S. at

510; Lacy v. Gabriel, 732 F.2d 7, 12 (1st Cir. 1984) (emphasizing
that, under Rose, the petitioner "was entitled all along to present

only a part of the claims available to him").   We see no reason why

a prisoner with a mixed petition should be better off than one
whose petition contains only exhausted claims.     But that is the

oddity implicit in the district court's reasoning. Under Rose, the

state prisoner with a mixed petition is entitled to proceed with

his exhausted claims if he agrees to amend his petition.   Under the

district court's approach, however, the state prisoner with a

petition containing only exhausted claims is forbidden to proceed

with those claims until he adjudicates any unexhausted claims in
state court.   That distinction makes little sense, and we do not

believe Rose compels it.

           In addition to Rose, the district court also relied on
cases such as Sherwood v. Tomkins, 716 F.2d 632 (9th Cir. 1983).

There, the petitioner had been convicted of manslaughter in state

court and, in the course of appealing that conviction, lodged

several requests for appointed counsel and a free transcript.   The

state courts denied his requests and, while his state appeal still

was pending, Sherwood filed a § 2254 petition challenging those

denials.    The Ninth Circuit held that Sherwood had failed to

exhaust his state remedies with respect to his claim of indigency,

and affirmed the dismissal of the § 2254 petition on that ground.

See id. at 633-34.    The court went on to note, in dicta, that


                               -14-
"[w]hen, as in the present case, an appeal of a state criminal

conviction is pending, a would-be habeas corpus petitioner must

await the outcome of his appeal before his state remedies are
exhausted, even where the issue to be challenged in the writ of

habeas corpus has been finally settled in the state courts."           Id.

at 634.
            The Ninth Circuit reached a similar conclusion -- this

time not in dicta -- in Edelbacher v. Calderon, 160 F.3d 582 (9th

Cir. 1998), another case cited by the district court. Edelbacher's

state conviction was affirmed on direct appeal, but his death

sentence was vacated.     Before the penalty-phase retrial had begun,

Edelbacher filed a § 2254 petition challenging his conviction. The

Ninth Circuit concluded that the petition was premature, holding
that the district court should not entertain a federal habeas

proceeding in the absence of a penalty phase judgment "or until the

existence     of   extremely   unusual   circumstances    warrant[s]    an
exception."    Id. at 585.

            We are not persuaded that Sherwood and Edelbacher support

the district court's conclusion that dismissal was required in

Nowaczyk's case.      The dicta in Sherwood suggests that a state

prisoner has not exhausted state remedies until he completes his

direct appeal from his conviction and sentence.          It therefore has

little relevance here: Nowaczyk completed his direct appeal before

he filed his § 2254 petition, and the district court did not

suggest that dismissal was warranted because of any failure to

exhaust state remedies.


                                  -15-
            Nor do we believe that Edelbacher stands for the broad

rule that federal courts must dismiss § 2254 petitions whenever the

petitioner is in the process of adjudicating other, related claims
in the state courts.     As we explained above, such a rule would be

inconsistent with Rose, and we doubt the Ninth Circuit intended to

adopt it sub silentio.4     The better view is that Edelbacher held
precisely   what   it   said:     that,   in   the   absence   of   unusual

circumstances, a state prisoner cannot proceed with his § 2254

petition when the state trial court has not yet rendered a decision

as to the proper penalty.5      Obviously, that rule is not implicated

here.

            In any event -- as the district court recognized -- other

circuits have rejected the broad rule that a state prisoner cannot
adjudicate his fully-exhausted claims under § 2254 when other


     4
       Indeed, in the wake of AEDPA, the Ninth Circuit has taken
pains to protect a state prisoner's right to adjudicate any
exhausted claims promptly. See Tillema, 253 F.3d at 503 (holding
that "the district court committed prejudicial legal error when it
dismissed Tillema's first federal habeas petition without affording
him the opportunity to abandon his sole unexhausted claim as an
alternative to suffering dismissal"); Anthony v. Cambra, 236 F.3d
568, 574 (9th Cir. 2000) (holding that "outright dismissal" of a
mixed petition without leave to amend was "improper," and
emphasizing that "district courts must provide habeas litigants
with the opportunity to amend their mixed petitions by striking
unexhausted claims").
     5
       There are sound reasons for such a rule, at least in cases
like Edelbacher, where the state prisoner was eligible for (and
initially received) a death sentence.       As the Ninth Circuit
explained, the federal habeas court needs to know whether the
prisoner's case is "capital" or "non-capital" before it can
proceed, because that designation determines which procedures will
govern the habeas proceedings. See Edelbacher, 160 F.3d at 585; 28
U.S.C. §§ 2261-2266 (setting out special procedures for prisoners
who are subject to a capital sentence).

                                   -16-
claims have not yet been decided by the state courts.               See, e.g.,

Pringle v. Court of Common Pleas, 744 F.2d 297, 300 (3d Cir. 1984)

(holding that the district court erred in concluding that the state
prisoner could     not   proceed   under   §   2254     on   exhausted     claims

regarding her conviction until she exhausted other claims regarding

her sentence); cf. Lacy, 732 F.2d at 12 (holding that the district

court cannot transform a fully exhausted petition into a mixed one

by raising an unexhausted claim sua sponte); Williams v. Maggio,

727 F.2d 1387, 1389 (5th Cir. 1984) (similar); Butler v. Rose, 686

F.2d 1163, 1167 (6th Cir. 1982) (similar).             Thus, we adhere to our

initial view that the district court was not required to delay its

decision on Nowaczyk's fully-exhausted claims until the conclusion

of the state proceedings.      See Jones v. Wainwright, 608 F.2d 180,
181 (5th Cir. 1979) (holding that petition need not be dismissed

"when the petitioner does not urge unexhausted grounds for relief

but the state claims that such grounds may be asserted in the
future"); United States ex rel. Boyance v. Myers, 372 F.2d 111, 112

(3d Cir. 1967) ("It is no bar to federal adjudication of the merits

of the present claim that a separate claim for relief on a

different ground is pending in a state court.").

             The question remains, however, whether such a delay was

permitted.     We hold that it was.        See Calderon v. United States

Dist. Ct., 134 F.3d 981 (9th Cir. 1998) ("[T]he fact that the

district   court   was   not   required    .   .   .    to   hold   [the    state

prisoner's] exhausted petition in abeyance does not necessarily

imply that the district court was without discretion to do so.").


                                   -17-
As the district court pointed out, if Nowaczyk had prevailed on his

double jeopardy claim, there likely would have been no need to

continue with the federal habeas proceedings.     Considerations of
judicial economy support the district court's decision to withhold

decision on claims that could have been mooted by the pending state

proceedings.   Moreover, although Rose's policy of comity did not

require the district court to "defer action" until the conclusion

of the state proceedings, 455 U.S. at 518, such a delay certainly

is consistent with that policy.6
          Not surprisingly, therefore, other courts to consider the

question have held that Rose does not foreclose the option of

delaying consideration of exhausted claims pending resolution of

other, unexhausted claims.     In Thompson v. Wainwright, 714 F.2d
1495 (11th Cir. 1983), for example, the Eleventh Circuit held that

the district court acted within its discretion in staying decision

on the state prisoner's § 2254 petition -- which contained only
exhausted claims -- while the petitioner presented an additional,

unexhausted claim to the state courts.       The court rejected as

"patently without merit" the state's argument that the district

court was obligated by Rose to decide the unexhausted claims

immediately.   Id. at 1499.   "The [district] court has the power to

control its docket.     So long as it abides by the limits of


     6
       We note that, at the time of the district court's decision
on remand, Nowaczyk's second application for post-conviction review
already had worked its way to the New Hampshire Supreme Court.
Thus, any delay was likely to be short -- and, in fact, the New
Hampshire Supreme Court issued its decision within weeks of the
district court's judgment.

                                 -18-
discretion, it can leave a habeas petition dormant on its docket

while the petitioner presents to the state court unexhausted

claims."   Id.

           Similarly, in Calderon, the Ninth Circuit reasoned that

"'[a] district court has discretion to stay a petition which it may

validly consider on the merits.'"            134 F.3d at 987 (quoting
Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir. 1997)).             It

rejected the view that Rose stood in the way of such a stay,

explaining that the Court in Rose "did not . . . intimate that

those petitioners who opted for amendment were required to proceed

posthaste on their remaining claims."        Id. at 988 n.10; see also

Burris v. Farley, 51 F.3d 655, 659 (7th Cir. 1995) (indicating that

district court can stay decision on exhausted claims until state
prisoner exhausts any remaining issues);       Fetterly v. Paskett, 997

F.2d 1295 (9th Cir. 1993) (holding that district court abused its

discretion in denying the state prisoner's request that it stay
decision on his § 2254 petition so that he could exhaust a newly-

discovered claim in the state courts).
           These cases support the district court's decision to

delay adjudication of Nowaczyk's fully-exhausted claims until the

resolution of the related state proceedings. We conclude that such

delay was permissible here. We turn, therefore, to the question of

what form the delay should have taken.

B.         Stay vs. Dismissal

           It appears that the question of stay versus dismissal in

cases   involving   only   fully-exhausted    claims   is   one   of   first

                                  -19-
impression.   However, several courts have addressed a related

question: the propriety of dismissal in post-AEDPA cases involving

mixed petitions.   Those cases are instructive here.
          When   Rose was    decided,     there   was   no   time   limit   on

petitions filed under § 2254.      Thus, there was little cost to a

dismissal without prejudice -- the state prisoner could refile the
petition at any time following exhaustion of his federal claims.

AEDPA changed matters.      Its one-year statute of limitations "has

rendered outright dismissal perilous to some litigants, because

petitioners . . . may find themselves time-barred when they attempt

to resubmit their exhausted claims to the district court." Anthony

v. Cambra, 236 F.3d 568, 573 (9th Cir. 2000).                Recognizing the

risks attendant to dismissal in the post-AEDPA world, several
courts have concluded that a stay is "the right step to take" in

cases involving mixed petitions.         Newell v. Hanks, 283 F.3d 827,

834 (7th Cir. 2002); Zarvela v. Artuz, 254 F.3d 374, 379-80 (2d
Cir. 2001) (concluding that "the enactment of AEDPA warrants some

adjustment in the pre-AEDPA requirement of Rose v. Lundy that mixed

petitions be dismissed in their entirety," and that, "[i]n many

cases, a stay will be preferable"); see also Duncan, 533 U.S. at

182-83 (Stevens, J., concurring) ("[I]n our post-AEDPA world there

is no reason why a district court should not retain jurisdiction

over a meritorious claim and stay further proceedings pending the

complete exhaustion of state remedies.").               But see Graham v.

Johnson, 168 F.3d 762, 779-80 (5th Cir. 1999) (disapproving of

open-ended stays of mixed petitions).        Indeed, there is a growing


                                  -20-
consensus that a stay is required when dismissal could jeopardize

the petitioner's ability to obtain federal review.                  See, e.g.,

Zarvela, 254 F.3d at 380 (holding that a stay "will be the only
appropriate course" where outright dismissal could jeopardize the

timeliness of any subsequent petition); Freeman v. Page, 208 F.3d

572, 577 (7th Cir. 2000) ("[D]ismissal is not appropriate when that
step could jeopardize the timeliness of a collateral attack."); see

also Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002) (noting

that    the   Second    Circuit's   approach   in   Zarvela   "is    eminently

reasonable").

              Although none of our cases has turned on the question of

stay versus dismissal, we have indicated that district courts

presented with mixed petitions should take seriously any request
for a stay.     In Neverson v. Bissonnette, 261 F.3d 120, 126 n.3 (1st

Cir. 2001), we noted that "the petitioner could have improved his

position by requesting that the district court stay, rather than
dismiss, Petition No. 1.         Post-AEDPA, this will be the preferable

course in many cases involving 'mixed' petitions -- and it may be
the only appropriate course in cases in which an outright dismissal

threatens to imperil the timeliness of a collateral attack."                We

reiterated that view in Delaney v. Matesanz, 264 F.3d 7, 13 n.5

(1st Cir. 2001), where we "especially commend[ed]" the use of stays

"in    instances   in    which   the   original   habeas   petition,    though

unexhausted, is timely filed, but there is a realistic danger that

a second petition, filed after exhaustion has occurred, will be

untimely."


                                       -21-
           The state points out that neither Neverson nor Delaney

compels a stay in the circumstances of this case.                 When the

district court entered judgment in March of 1999, the statute of
limitations was still being tolled by Nowaczyk's second application

for state post-conviction review, and several months would remain

in the limitations period when the clock started running again.7
Moreover, the district court warned Nowaczyk that he would need to

return promptly to federal court as soon as the state courts

decided   the   double   jeopardy    claims    presented   in   his   second

application for post-conviction review. Accordingly, if Nowaczyk's

petition still had been "mixed," Neverson and Delaney probably

would not have prevented the district court from dismissing it.

           But therein lies the problem.           In both Neverson and
Delaney, the district court was presented with a § 2254 petition

that contained unexhausted claims.            Thus, it did not have the

option of adjudicating the petition immediately.                Unless the
petitioner agreed to amend the petition to drop the unexhausted

claims, the district court had no choice but to delay decision
until the prisoner completed the process of exhaustion.



     7
       Under the district court's computation (which excluded the
90-day period for seeking certiorari from the United States Supreme
Court), the statute of limitations had run for approximately nine
months when Nowaczyk filed his first application for state post-
conviction review in October of 1997, leaving roughly three months
to go.    Nowaczyk and the state maintain -- and we agree, see
Donovan, 276 F.3d at 91 -- that the statute of limitations did not
begin to run until after the 90-day certiorari period. On that
view, approximately six months remained in the limitations period
when the New Hampshire Supreme Court rejected Nowaczyk's second
application for state-post conviction review.

                                    -22-
            The situation here is critically different.               Nowaczyk's

petition contained only exhausted claims.               Nothing prevented the

district court from adjudicating those claims immediately; indeed,
Nowaczyk urged it to do so.        Although we have determined that the

district court did not abuse its discretion in withholding decision

while Nowaczyk's      second     application     for   state    post-conviction
relief    was   pending,   it    bears    emphasis     that    --   unlike   cases

involving mixed petitions -- such delay was not required here.                 It

is one thing to say that a district court may choose between a stay

and dismissal when a flaw in the § 2254 petition makes it necessary

to delay decision through some means.             It is quite another to say

that the court may dismiss a petition that is properly before it

and ready for decision.
            The    state   has    not    even    attempted     to   defend    that

proposition.      Instead, relying on cases such as Sherwood, it seeks

to show that Nowaczyk's petition was not, in fact, ready for
decision.       We rejected that view above.           We explained that the

district court's decision to delay action on Nowaczyk's petition
was not compelled by Rose or by the principles of comity on which

the total exhaustion rule is based. That decision was permissible,

however, as an exercise of the district court's "power to control

its docket," Thompson, 714 F.2d at 1499, and in the interest of

comity.    The question here is whether that power to delay embraces

the discretion to dismiss an action properly before the court and

within its statutory jurisdiction.             We think not.




                                        -23-
            We conclude that "[w]hen unusual circumstances" -- rather

than a flaw in the petition itself -- "make it imprudent to address

the § 2254 petition immediately, the collateral attack should be
stayed rather than dismissed."                  Post v. Gilmore, 111 F.3d 556, 557

(7th Cir. 1997).           This case is unusual because Nowaczyk was in the

process of adjudicating his double jeopardy claim in the state
courts, yet made no effort to include that claim in his § 2254

petition.       He    expressed         no    interest       in    delaying    the     federal

proceedings until the resolution of his second application for

state post-conviction review; nor did he seek to amend his § 2254

petition to include the claim of double jeopardy.                            Rather, he was

ready   and     willing          to    adjudicate      the        fully-exhausted       claims

presented in that petition immediately.
              Thus, Nowaczyk's case differs from those discussed in the

previous section, which affirm the district court's discretion to

delay   resolution          of    a    fully-exhausted            petition    so     that    the
petitioner     can        exhaust      other    claims       in    state     court    and,   if

necessary, amend his federal petition to include them.                                  It is

notable   that       none    of       those    cases    so   much     as    suggested       that

dismissal     was     a    viable       option.        Rather,       the   courts      clearly

understood the choice to be between immediate adjudication or a

stay.     See,      e.g.,        Anthony,      236    F.3d   at     575    ("Our     precedent

unequivocally authorizes district courts to stay fully exhausted

federal petitions . . . .") (emphasis added); Thompson, 714 F.2d at

1500 (affirming district court's decision to stay decision on

exhausted claims although the district court also "could have


                                               -24-
denied a delay [and] decided the issues that were alleged in the

petition"). If outright dismissal of a fully-exhausted petition is

disfavored even when the petitioner asked the court to withhold
decision on his claims, it is even more inappropriate where, as

here, the petitioner resisted any such delay.      See Jones, 608 F.2d

at 183 (holding that district court erred in dismissing a fully-
exhausted petition on the ground that other, unexhausted, claims

might be asserted in the future); Myers, 372 F.2d at 112 (holding

that district court erred in dismissing, rather than adjudicating,

a fully-exhausted claim where another claim was still pending

before the state courts).

             The reason for such a rule is fairly simple.        Although

habeas relief is an equitable remedy, "a district judge may not
remit [§ 2254] petitioners to their other remedies, the way a judge

may decline to issue declaratory relief."       Post, 111 F.3d at 557.

Rather, like other civil actions, § 2254 petitions are "governed by
the norm that a district court must exercise its full statutory

jurisdiction."     Id.; see also Colorado River Water Conservation

Dist. v. United States, 424 U.S. 800, 817 (1976) (noting "the

virtually unflagging obligation of the federal courts to exercise

the jurisdiction given them").        That norm is violated when the

district court dismisses a petition that is properly before it and

within its jurisdiction under AEDPA.      A stay does not suffer from

the   same    infirmity.    Because     the   district   court   retains

jurisdiction over the petition during the course of a stay, that

procedure does not "involve the abdication of federal jurisdiction,


                                 -25-
but only the postponement of its exercise." Harrison v. NAACP, 360

U.S. 167, 177 (1959) (discussing a form of abstention under which

the district court retains jurisdiction over the federal action
pending proceedings in state court).8
          Of course, the "norm" that a district court must exercise

its full jurisdiction is just that -- a norm -- and can give way in
the face of countervailing demands. See, e.g., Colorado River, 424

U.S. at 813 (explaining that "exceptional circumstances" may permit

abstention from "the duty of a District Court to adjudicate a

controversy properly before it").     Thus, we do not adopt a bright-

line rule that a district court may never dismiss a fully-exhausted

petition. However, in order to justify a departure from the "heavy

     8
       We recognize that, in certain circumstances, "a stay is as
much a refusal to exercise federal jurisdiction as a dismissal."
Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 28
(1983). That is so, for example, when the district court enters a
stay under the Colorado River doctrine on the ground that "parallel
state-court litigation will be an adequate vehicle for the complete
and prompt resolution of the issues between the parties." Id. In
such a case, the expectation "is that the controversy will be
resolved in the state court proceeding, and that if the party
returns to federal court after the state action is over, the most
that will be needed is to dispose of the federal suit on principles
of res judicata or collateral estoppel." Charles A. Wright, Arthur
R. Miller & Edward H. Cooper, 17A Federal Practice and Procedure
§ 4247, at 136 (2d ed. 1994). It therefore makes no difference
whether the district court enters a stay or dismisses the case
outright: either way, the parties will be forced to adjudicate
their claims in state, rather than federal, court.
     That is not the situation here. The state courts' resolution
of Nowaczyk's double jeopardy claim against him would not prevent
Nowaczyk from asserting that claim or any of his other claims in
the federal habeas proceedings. At most, a ruling in Nowaczyk's
favor on the double jeopardy claim would have rendered the federal
proceedings unnecessary, because Nowaczyk already would have
obtained the relief he desired. Thus, in staying its hand until
the resolution of the state court proceedings, the district court
would postpone, rather than abdicate, its exercise of jurisdiction
over those claims.

                               -26-
obligation to exercise jurisdiction," id. at 820, there must be

some compelling reason to prefer dismissal over a stay.          Such a

justification is wholly lacking here.        As the state conceded at
oral argument, the comity concerns on which the district court

relied are adequately served by a stay. Indeed, staying Nowaczyk's

fully-exhausted petition would seem to be the most obvious way to
"defer action . . . until" the state courts had a full opportunity

to pass on the double jeopardy claim, Rose, 455 U.S. at 518.           See

Zarvela, 254 F.3d at 380 (noting that "[s]taying the exhausted

claims would be a traditional way" to satisfy Rose's policy of

comity).     Most importantly, a stay would serve the interest of

comity while, at the same time, protecting Nowaczyk's interest in

adjudicating his federal constitutional claims in federal court.
            The state argues vaguely that dismissal would relieve the

district court of the burden of keeping track of the case.            It is

not clear that leaving the case on the court's docket would be
particularly taxing, and the state has made no effort to explain

the point.    But even if we assume that a stay would cause some

additional administrative burden, such a minor inconvenience hardly

outweighs    the   district   court's    obligation   to   exercise     its

jurisdiction under AEDPA.

            Finally, the state emphasizes that the district court did

not ask much of Nowaczyk:      all he had to do was refile the same

petition he filed in June of 1997.       That is beside the point.       As

we have explained, the district court has an affirmative obligation

to adjudicate claims, such as Nowaczyk's, that are properly before


                                  -27-
it. Thus, it is irrelevant that Nowaczyk easily could have refiled

his petition.    The same could be said of any civil complaint, but

that clearly would not justify dismissing it.       Rather, whatever
administrative inconvenience resulted from the district court's

decision to delay resolution of Nowaczyk's claims -- the burden of

keeping track of the case, as the state puts it -- should have been
borne by the court, not Nowaczyk.

            Under AEDPA, pro se prisoners seeking to adjudicate their

constitutional claims in federal court must satisfy several complex

procedural requirements that often are difficult even for courts to

decipher.    See, e.g., Carey v. Saffold, 122 S. Ct. 2134 (2002)

(resolving a circuit split on the question when an application for

state post-conviction review is "pending" under AEDPA's tolling
provision); Duncan v. Walker, 533 U.S. 167 (2001) (same, on the

question whether later-dismissed § 2254 petitions toll AEDPA's

statute of limitations); Artuz v. Bennett, 531 U.S. 4 (2000) (same,
on the question when an application for state post-conviction

review is "properly filed" under AEDPA's tolling provision); Slack

v. McDaniel, 529 U.S. 473 (2000) (same, on the question whether

petitions filed after an earlier petition is dismissed for failure

to exhaust state remedies are subject to the prohibition on "second

or successive" petitions). When a prisoner manages to make his way

through the procedural thicket and places his timely, fully-

exhausted claims before the district court, we do not think he

should be turned away with dismissal of his action on the basis of

an insubstantial claim of administrative convenience.


                                 -28-
                                    III.

            In summary, we hold that the district court abused its

discretion in denying Nowaczyk's motion for reconsideration and

dismissing his fully-exhausted § 2254 petition.              AEDPA's one-year

statute of limitations expired while this appeal was pending.

Thus, if we had affirmed the dismissal of Nowaczyk's first § 2254

petition, a serious question would have arisen as to whether he

would be permitted to file a second petition at this time.

            That Nowaczyk's claims were properly before the district

court,    ready   for   adjudication,    is    critical     to   our   decision.
Nowaczyk urged prompt action. The district court has an obligation

to   adjudicate    claims,   like   Nowaczyk's,      that    are      within    its
statutory    jurisdiction.      Although      the   question     is    close,   we
conclude that the court is entitled to delay decision on such

claims when considerations of comity and judicial economy would be
served.     However, something more than related claims pending in
state court is needed before the court may dismiss a fully-

exhausted petition outright.            Such dismissal has always been
difficult to square with the court's obligation to exercise the
jurisdiction given it by Congress.            AEDPA raises the stakes:          its

complex procedural requirements heighten the risk that a dismissal
without prejudice will, in practice, result in a dismissal with

prejudice, as happened here.

            In the face of those concerns, the district court cited
the general interest in federal-state comity as a reason for

dismissing Nowaczyk's petition.            But that interest is served

                                    -29-
equally well by a stay; it cannot justify the court's choice of the

more extreme measure of dismissal.          The state points to the

administrative burden, identified as keeping track of the case,
associated with retaining jurisdiction over Nowaczyk's case.         That

is not enough. If the court's obligation to exercise its statutory

jurisdiction means anything, it cannot possibly be trumped by such
a trivial inconvenience.     Indeed, an obligation that dissolves at

the first pinch of inconvenience is no obligation at all.

           We have said that an "[a]buse [of discretion] occurs when

a material factor deserving significant weight is ignored, when an

improper factor is relied upon, or when all proper and no improper

factors are assessed, but the court makes a serious mistake in

weighing them."    Fashion House, Inc. v. K Mart Corp., 892 F.2d

1076, 1081 (1st Cir. 1989) (internal quotations omitted).           Here,

the factors on which the district court relied do not support its

decision   to   dismiss   Nowaczyk's    petition   rather   than   retain
jurisdiction and enter a stay.    Given the difficulties associated

with dismissal in general of a claim properly before the court --

and under AEDPA in particular -- that decision constituted an abuse

of discretion.

           It appears that Nowaczyk no longer has any claims pending

before the state courts.        Accordingly, we remand his § 2254

petition to the district court for decision on the merits of the

claims presented therein.9

     9
       Nowaczyk also argued that the statute of limitations should
be equitably tolled to permit him to file another petition. Given
our conclusion that the district court erred in dismissing

                                 -30-
          Reversed and remanded.




Nowaczyk's first petition, we express no view as to the
availability of equitable tolling, either under AEDPA generally, or
in the specific circumstances of this case.

                               -31-
                                APPENDIX

          To    assist   the   reader,   we   set   forth   the   following

chronology of important dates:

January 24, 1997:        End of Nowaczyk's direct appeal.

April 24, 1997:          End of 90-day certiorari period. Parties
                         agree that AEDPA statute of limitations
                         began running on this date.

June 20, 1997:           Nowaczyk files his § 2254 petition.

October 28, 1997:        Nowaczyk files his first application for
                         state post-conviction relief, raising the
                         claim of judicial bias. Tolling begins.

May 10, 1998:            Nowaczyk files his second application for
                         state post-conviction relief, raising the
                         claim of double jeopardy.

July 22, 1998:           District court dismisses Nowaczyk's § 2254
                         petition for failure to exhaust state
                         remedies.
July 24, 1998:           Nowaczyk files a notice of appeal from the
                         district court's judgment.
July 31, 1998:           New Hampshire Supreme Court rejects the
                         judicial bias claim presented in Nowaczyk's
                         first application for state post-conviction
                         relief. (Tolling continues because second
                         application is still pending.)
August 1, 1998:          Nowaczyk files a motion for reconsideration
                         in the district court.
August 28, 1998:         District court denies Nowaczyk's motion for
                         reconsideration as "moot."
November 9, 1998:        We remand the case to the district court for
                         consideration of the merits of Nowaczyk's
                         motion for reconsideration.
March 9, 1999:           District court denies Nowaczyk's motion for
                         reconsideration and dismisses his § 2254
                         petition without prejudice.

March 9, 1999:           Nowaczyk files a notice of appeal from the
                         district court's judgment.

                                  -32-
March 26, 1999:       New Hampshire Supreme Court rejects the
                      double   jeopardy   claim    presented   in
                      Nowaczyk's second application for state
                      post-conviction relief. Tolling ends; the
                      statute of limitations begins running again
                      with approximately six months remaining.

September 19, 2000:   Statute    of   limitations expires while
                      Nowaczyk's appeal from the dismissal of his
                      petition by the district court is pending
                      before us.




                              -33-
