                                                                              FILED
                            NOT FOR PUBLICATION                                SEP 03 2013

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ESLI JOEL ALVAREZ,                               No. 10-55472

              Petitioner - Appellant,            D.C. No. 5:06-cv-00931-MMM-
                                                 RC
  v.

M. KNOWLES, Warden,                              MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                       Argued and Submitted March 5, 2013
                              Pasadena, California

Before: HAWKINS, THOMAS, and HURWITZ, Circuit Judges.

       Esli Joel Alvarez appeals the district court’s dismissal of his habeas corpus

petition. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                            I

       The district court did not abuse its discretion in denying the motion to stay

and abate.1 See Rhines v. Weber, 544 U.S. 269, 278 (2005) (describing standard).

“[A] district court must dismiss habeas petitions containing both unexhausted and

exhausted claims.” Rose v. Lundy, 455 U.S. 509, 522 (1982). A district court has

the discretion to “stay the petition and hold it in abeyance while the petitioner

returns to state court to exhaust his previously unexhausted claims.” Rhines, 544

U.S. at 275. However, the “stay and abeyance is only appropriate when the district

court determines there was good cause for the petitioner’s failure to exhaust his

claims first in state court.” Id. at 277.

       Before the district court, Alvarez identified two reasons for his failure to

exhaust: (1) he was pro se; and (2) the prison in which he was housed was on lock

down for much of the time he was there, and he only had limited access to

materials. The district court thoroughly reviewed these justifications and

       1
          Respondent contends that this issue is uncertified and should not be
considered. “[U]ncertified issues raised on appeal ‘will be construed as a motion
to expand the COA and will be addressed by the merits panel to such extent as it
deems appropriate.’” Towery v. Schriro, 641 F.3d 300, 311 (9th Cir. 2010)
(quoting 9th Cir. R. 22-1(e)). We so construe petitioner’s brief, and grant the
motion to expand the COA because “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right, and
that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000).

                                            2
concluded, under the circumstances presented by the case, that the reasons did not

constitute good cause. This was consistent with Rhines and Wooten v. Kirkland,

540 F.3d 1019, 1023-24 (9th Cir. 2008).

                                           II

      Alvarez argues for the first time on appeal that the magistrate judge did not

comply with the Federal Magistrate Judge Act and Federal Rule of Civil Procedure

72 in ordering Alvarez to amend his petition to remove unexhausted claims or have

his petition dismissed. See 28 U.S.C. § 636. The magistrate judge should have

submitted that initial order to the district judge for approval. Hunt v. Pliler, 384

F.3d 1118, 1123 (9th Cir. 2004). However, the issue was ultimately presented to

the district court as part of the magistrate judge’s final Report and

Recommendation. That Report concluded “that the habeas corpus petition was a

‘mixed’ petition, based on petitioner’s candid statement that he had not yet

exhausted Grounds Five through Ten, and, as such, it must be dismissed without

prejudice.” The district court conducted de novo review and “adopt[ed] the report

in its entirety.” Under these circumstances, any defect was cured, and we see no

error in the district court’s purported failure to grant leave to amend sua sponte.

      At most, the magistrate judge’s early order simply resulted in Alvarez’s

petition containing only two unexhausted claims rather than eight. Because the


                                           3
district court found no good reason for failure to exhaust the remaining claims in

dismissing the mixed petition, and because Alvarez does not contend that the

claims he dismissed in response to the magistrate judge’s order were in fact

exhausted, the outcome below was not affected by the magistrate judge’s order.

      AFFIRMED.




                                         4
                                                                                FILED
Alvarez v. Knowles, No. 10-55472                                                 SEP 03 2013

                                                                             MOLLY C. DWYER, CLERK
THOMAS, Circuit Judge, dissenting:                                            U.S. COURT OF APPEALS



      I respectfully dissent because the magistrate judge did not comply with the

Federal Magistrate Judge Act and Federal Rule of Civil Procedure 72 in ordering

Alvarez to amend his petition to remove unexhausted claims or have his petition

dismissed, and the error deprived Alvarez of his right to district court review of a

dispositive order. See 28 U.S.C. § 636.1

      The magistrate judge required Alvarez to amend his petition to remove

grounds 5 through 10 or have his entire petition dismissed. That was a dispositive

order that should have been presented to the district court for de novo review.

Hunt v. Pliler, 384 F.3d 1118, 1123 (9th Cir. 2004); 28 U.S.C. § 636; Fed. R. Civ.

P. 72. The order was only mentioned in the magistrate judge’s report and

recommendation long after the order was issued and the claims were removed, and

it was never addressed by the district court.

      “[T]he magistrate judge, instead of submitting proposed findings and

recommendations, issued an order, not authorized by the statute, that required

[Alvarez] to forfeit the claims [s]he found unexhausted or face dismissal of the

entire petition.” Hunt, 384 F.3d at 1124. This act was an abuse of discretion that


      1
        I agree with the majority that the district court did not abuse its discretion
in denying the stay and abey order, but find it unnecessary to reach that question.
deprived Alvarez “of the right to de novo review by the district court of the

magistrate judge’s pivotal determination.” Id. at 1125. This error was not cured

by the subsequent district court order; indeed, the procedural posture of this case is

indistinguisable from Hunt. Because I conclude that this case cannot be reconciled

with Hunt, I must respectfully dissent.
