Opinion
ORDER ACCEPTING AND MODIFYING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
VIRGINIA A. PHILLIPS, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge. The time for filing Objections to the Report and Recommendation has passed and no Objections have been received. Accordingly, the Court accepts the findings, conclusions and recommendations of the Magistrate Judge, except as modified below:
The Court notes that the Magistrate Judge's dismissal of Petitioner's unexhausted claim (Dkt. No. 11) is consistent with the procedure recently approved of in Bastidas v. Chappell, ___ F.3d ___, 2015 WL 3972942 (9th Cir. July 1, 2015). In Bastidas, after the respondent filed a motion to dismiss on exhaustion grounds, the petitioner sought to dismiss two of his existing, unexhausted grounds for relief. Bastidas, 2015 WL 3972942, at *7. The Ninth Circuit found that it was appropriate for the magistrate judge to dismiss the unexhausted claims under circumstances that did not involve "unauthorized steps that ultimately force a litigant to move to dismiss some of his claims." Id. at *8. The court distinguished this situation from one in which the magistrate judge denied the same petitioner's motion to stay and abey his petition pending the exhaustion of a newly raised claim. Id. at *6. Denial of a stay motion, the Ninth Circuit held, was dispositive of the unexhausted claim and fell outside the purview of a magistrate judge. Id.
In the present case, on January 26, 2015, Respondent filed a Motion to Dismiss on grounds that two of Petitioner's three claims were unexhausted. (Dkt. No. 7). On February 12, 2015, the Magistrate Judge denied Respondent's Motion to Dismiss without prejudice and provided options for Petitioner. (Dkt. No. 9 at 2, 4). The Magistrate Judge requested that Petitioner either explain why his claim was unexhausted, dismiss the action or the potentially unexhausted claim voluntarily, or to move to stay and abey the Petition pending exhaustion. (Dkt. No. 9 at 3-4). On February 27, 2015, Petitioner filed a Notice of Dismissal, voluntarily dismissing Ground One of his Petition, which the Court later recognized in an order. (Dkt. No. 12). This procedure was fully consistent with the voluntary dismissal procedure approved of in Bastidas. In both cases, the magistrate judge issued an order "doing what a habeas petitioner has asked, against the backdrop of a proposed motion to dismiss, [which] does not equate to a dispositive order." Bastidas, 2015 WL 3972942, at *8.
Accordingly, IT IS ORDERED that the Petition is denied and Judgment shall be entered dismissing this action with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.