                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 13 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

JENNIFER LYNN HENDERSON,                          No. 11-55249

             Petitioner - Appellant,
                                                  D.C. No. 8:11-cv-00128-PSG-RZ
  v.

DEBORAH K. JOHNSON, Warden,                       MEMORANDUM *

             Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                     Argued and Submitted November 8, 2012
                              Pasadena, California

Before: BRIGHT,** GRABER, and IKUTA, Circuit Judges.

       Jennifer Lynn Henderson, who is currently serving two consecutive life

sentences without the possibility of parole, appeals from the district court’s

summary dismissal of her habeas petition for failure to exhaust state remedies. We

conclude that the district court erred in dismissing Henderson’s petition without


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable Myron H. Bright, Senior Circuit Judge for the United
States Court of Appeals for the Eighth Circuit, sitting by designation.
offering her leave to amend. We reverse and remand for the consideration of all

exhausted claims.

      Federal courts may not adjudicate mixed habeas petitions, that is, those

containing both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509,

518–19 (1982). However, we have explained that a petitioner who files a mixed

petition must, at a minimum, be offered leave to amend the petition to delete any

unexhausted claims and to proceed on the exhausted claims. See, e.g., Jefferson v.

Budge, 419 F.3d 1013, 1016–17 (9th Cir. 2005) (reversing and remanding the

dismissal of a mixed habeas petition because the district court failed to offer the

petitioner the opportunity to amend his petition to abandon the unexhausted

claims); Kelly v. Small, 315 F.3d 1063, 1069–70 (9th Cir. 2003) (reversing the

dismissal of a mixed petition and remanding “so that the district court can offer

Petitioner the opportunity to dismiss [the unexhausted] claims and proceed to the

merits of the others”), overruled in part on other grounds by Robbins v. Carey, 481

F.3d 1143 (9th Cir. 2007); Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000)

(“[D]istrict courts must provide habeas litigants with the opportunity to amend

their mixed petitions by striking unexhausted claims.”); Jarvis v. Nelson, 440 F.2d

13, 14 (9th Cir. 1971) (per curiam) (“[A] petition for habeas corpus should not be

dismissed without leave to amend unless it appears that no tenable claim for relief



                                          -2-
can be pleaded were such leave granted.”); see also Rhines v. Weber, 544 U.S. 269,

278 (2005) (concluding that even where a stay was inappropriate, at a minimum

the district court should allow a petitioner to delete the unexhausted claims and

proceed with the exhausted claims only).

      Sherwood v. Tomkins, 716 F.2d 632 (9th Cir. 1983), is distinguishable, and

the district court erred as a matter of law by dismissing Henderson’s petition.

Although district courts cannot adjudicate mixed petitions, Sherwood does not

undermine the substantial precedent requiring district courts first to grant leave to

amend, and, if requested, to consider a petitioner’s eligibility for a stay under

Rhines, 544 U.S. at 275–77 (stay of entire petition) or under Kelly, 315 F.3d at

1070–71 (stay of exhausted claims only). The district court erred by failing to

allow Henderson leave to amend her petition before dismissal, and by refusing to

address Henderson’s request for relief under Rhines or Kelly.

      Moreover, because the California courts have now considered and rejected

all of Henderson’s habeas claims, her federal habeas petition contains only

exhausted claims and should be allowed to proceed.



      REVERSED AND REMANDED.




                                          -3-
