Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
State prisoner filed petition for writ of habeas corpus. The United States District Court for the Central District of California, Nora M. Manella, J., dismissed petition without prejudice. Prisoner appealed. The Court of Appeals held that prisoner was entitled to opportunity to amend mixed petition or to stay of matter pending exhaustion of state claims.
Reversed and remanded.
Page 652.
Appeal from the United States District Court for the Central District of California, Nora M. Manella, District Judge, Presiding.
Before HUG, PREGERSON, and WARDLAW, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
California prisoner Tracey M. Waldron appeals pro se the district court's dismissal without prejudice of his 28 U.S.C. § 2254 petition for writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and reverse and remand.
Waldron contends the district court erred by dismissing his petition without providing him leave to amend. We review the district court's decision to deny a 28 U.S.C. § 2254 petition de novo. See Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir.2000).
The government concedes it was error for the district court to dismiss Waldron's petition without first providing him with either the opportunity to amend his mixed petition by striking the unexhausted state claims or staying the matter pending exhaustion of his state claims. See Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir.2000), cert. denied, 533 U.S. 941, 121 S.Ct. 2576, 150 L.Ed.2d 739 (2001) (citing Calderon v. United States Dist. Ct. (Taylor), 134 F.3d 981, 986 (9th Cir.1998)).
We have reviewed and correspondingly rejected the government's mootness argument. See 28 U.S.C. §§ 2244(b)(1), 2254(b)(1).
REVERSED and REMANDED.