                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 14 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

WILLIAM SADOWSKI,                               No.    16-56166

                Petitioner-Appellant,           D.C. No. 2:12-cv-10623-PSG-E

 v.
                                                MEMORANDUM*
RANDY GROUNDS, Warden,

                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 5, 2018
                              Pasadena, California

Before: RAWLINSON and HURWITZ, Circuit Judges, and BOUGH, ** District
Judge.

      William Sadowski, a California state prisoner, appeals the district court’s

judgment denying his petition for writ of habeas corpus. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2253. We affirm in part, vacate in part, and remand



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
with instructions for the district court to review de novo Sadowski’s April 25,

2013, motion to stay.

        1. Because Sadowski’s petition contained both exhausted and unexhausted

claims, he requested a stay to allow him to return to state court to complete

exhaustion. The magistrate judge denied his request for a stay under Rhines v.

Weber, 544 U.S. 269 (2005), but granted a stay under Kelly v. Small, 315 F.3d

1063 (9th Cir. 2003), which required deletion of the unexhausted claims from the

federal petition. Subsequently, the district court adopted the magistrate judge’s

Report and Recommendation, rejecting the remaining claims on the merits.

        Reviewing de novo, see Mitchell v. Valenzuela, 791 F.3d 1166, 1168 (9th

Cir. 2015), we conclude that the magistrate judge lacked the statutory authority to

deny Sadowski’s request for a Rhines stay.1 See id. at 1170. (“[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.”) (citations omitted); Bastidas v. Chappell, 791 F.3d 1155,

1163–64 (9th Cir. 2015) (same).2

        Accordingly, remand is necessary for the district court to consider de novo


1
    We commend the government for raising this jurisdictional issue.
2
 We note that neither the magistrate judge, nor the district court, had the benefit of
Mitchell when they entered the orders at issue.


                                           2                                    16-56166
Sadowski’s April 25, 2013, motion to stay. The judgment is vacated in part to

allow this determination. The Supreme Court has recognized that “it likely would

be an abuse of discretion for a district court to deny a stay and to dismiss a mixed

petition if the petitioner had good cause for his failure to exhaust, his unexhausted

claims are potentially meritorious, and there is no indication that the petitioner

engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278.

      On remand, the district court may consider the magistrate judge’s order

denying the Rhines stay as a Report and Recommendation, and provide the parties

an opportunity to lodge objections. See Mitchell, 791 F.3d at 1174. If the district

court finds that no Rhines stay was warranted, it may re-impose its June 19, 2015,

order. On the other hand, if a stay was warranted, the district court should consider

the claims that were deleted from the petition as a result of the denial of the Rhines

stay “as if they had never been dismissed.” Id. The district court shall issue a new

judgment once proceedings in that court are complete.

      2. We review the district court’s denial of the exhausted claims de novo, and

affirm. See Smith v. Ryan, 823 F.3d 1270, 1278–79 (9th Cir. 2016).

      a. Sadowski contends that the prosecutor committed misconduct during

closing argument. None of the prosecutor’s remarks, taken individually or

together, constituted prejudicial misconduct. See Darden v. Wainwright, 477 U.S.

168, 181 (1986) (habeas relief is warranted only when prosecutorial misconduct


                                           3                                      16-56166
“so infected the trial with unfairness as to make the resulting conviction a denial of

due process”).

      b. Sadowski next contends that his constitutional rights were violated by the

presence of uniformed officers during trial. There is no clearly established

Supreme Court precedent regarding “spectator conduct.” See Carey v. Musladin,

549 U.S. 70, 76-77 (2006). Accordingly, the state court’s denial of this claim

could not have been “contrary to, or [have] involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1).

      c. Finally, Sadowski challenges that the jury’s finding that he was sane at the

time of the crimes. He again fails to identify any clearly established Supreme

Court precedent authorizing a constitutional challenge to the sufficiency of the

evidence supporting an affirmative defense of insanity. Therefore, the state court’s

denial of this claim cannot be contrary to, or an unreasonable application of,

Supreme Court precedent. See id.

      3. We decline to reach the remaining certified issue regarding the timeliness

of the claims Sadowski deleted from his habeas petition, as it may be rendered

moot during the course of the remand.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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