FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PABLO BASTIDAS,

Petitioner-Appellant,

v.

KEVIN CHAPPELL, Warden,

Respondent-Appellee.

No. 12-55024

D.C. No.

2:07-cv-08390-MMM-JC

OPINION

Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted

December 8, 2014—Pasadena, California

Filed July 1, 2015

Before: Harry Pregerson, Kim McLane Wardlaw,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon
2 BASTIDAS V. CHAPPELL

SUMMARY*

Habeas Corpus

Vacating the district court’s judgment dismissing a habeas

corpus petition and remanding, the panel held that the

petitioner’s motion to stay and abey his 28 U.S.C. § 2254

habeas petition in order to exhaust in state court a claim that

was not yet part of his federal habeas petition was dispositive

of that new unexhausted claim, such that the magistrate judge

was without authority to hear and determine the motion, but

rather was required to submit a report and recommendation

to the district court. 

The panel rejected the petitioner’s argument that the

magistrate judge lacked authority to grant his request to

remove two unexhausted claims from his petition.

COUNSEL

Mark Raymond Drozdowski, Deputy Federal Public

Defender, Michael David Weinstein (argued), Assistant

Federal Public Defender, and Raj Shah, Certified Law

Student, Federal Public Defender’s Office, Los Angeles,

California, for Petitioner-Appellant.

Kamala Harris, Attorney General, Lance Winters, Senior

Assistant Attorney General, Michael Johnsen, Supervising

Deputy Attorney General, and Kim Aarons (argued) and Ana

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
BASTIDAS V. CHAPPELL 3

R. Duarte, DeputyAttorneys General, Office of the California

Attorney General, Los Angeles, California for RespondentAppellee.

OPINION

BERZON, Circuit Judge:

Mitchell v. Valenzuela, filed today, holds that a motion to

stay and abey a 28 U.S.C. § 2254 habeas corpus petition to

exhaust claims in state court is generally (but not always)

dispositive of the unexhausted claims, and that a magistrate

judge therefore generally cannot hear and determine such a

motion. Mitchell v. Valenzuela, No. 12-55041, slip op. at 3

(9th Cir. July 1, 2015). In Mitchell, the petitioner sought a

stay in order to exhaust claims that were already part of his

petition. Id. at 4. Here, the petitioner, Pablo Bastidas, moved

to stay and abey his petition while he exhausted a claim that

was not yet a part of his federal habeas petition. We hold that

Bastidas’s motion was likewise dispositive of that new

unexhausted claim, such that the magistrate judge was

without authority to “hear and determine” it, but rather was

required to submit a report and recommendation to the district

court. 28 U.S.C. § 636(b)(1)(A)–(B). We also reject

Bastidas’s argument that the magistrate judge lacked

authority to grant Bastidas’s request to remove two

unexhausted claims from his petition.

I.

Pablo Bastidas was convicted at a jury trial in California

court of four counts of second-degree robbery, three counts

of possession of a firearm by a felon, and one count of assault
4 BASTIDAS V. CHAPPELL

with a firearm. With various enhancements found true by the

jury, he was sentenced to a total of fifty-five years in prison.

After the California courts denied relief on direct appeal

and state habeas review, Bastidas, represented by counsel,

filed the federal habeas petition at issue here. He conceded

in his petition that two of the four claims he asserted had not

been presented to the California Supreme Court. The case

was referred to a magistrate judge, who was authorized by the

district court “to consider preliminarymatters and conduct all

further hearings as may be appropriate or necessary,” and

directed to then prepare and file a report and

recommendation.

Bastidas’s attorneysubsequentlywithdrew. Bastidasfiled

a pro se motion to stay and abey the proceedings, noting that

he had filed a new petition in state court asserting that his

constitutional rights had been violated when the trial court

ordered his “una[d]judicated weapon enhancements” to run

consecutively to the principal charge. That claim was not

part of Bastidas’s existing federal habeas petition; rather, he

sought a stay to exhaust the claim so that he could amend it

into his petition. The state did not file a response to the

motion to stay and abey.

The magistrate judge denied the motion to stay and abey. 

She stated that, under Rhines v. Weber, 544 U.S. 269 (2005),

and Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), she had the

authority to stay the petition and allow Bastidas to amend in

the new claim once it was exhausted. But the magistrate

judge denied the stay under Kelly, because, she held, the

claim was already time-barred. Equitable tolling was not

warranted, the magistrate judge held, and the new claim did

not relate back to the filing of the original petition. The
BASTIDAS V. CHAPPELL 5

magistrate judge also decided that a stay under Rhines was

foreclosed, both as time barred and as lacking good cause.

The state subsequently filed a motion for leave to file a

motion to dismiss, as well as a proposed motion to dismiss,

arguing that two of the four claims in Bastidas’s petition were

unexhausted. Shortly thereafter, before the magistrate judge

acted on the state’s motion, Bastidas filed a pro se “notice of

withdrawal,” conceding that two claims in the habeas petition

were not exhausted, noting that the court had already denied

his earlier motion for a stay as to the new claim, and asking

the court to dismiss the two unexhausted claims in his

petition. The magistrate judge granted Bastidas’s request,

dismissed the two claims, denied the state’s motion for leave

to file the motion to dismiss as moot, and directed the clerk

to strike the proposed motion to dismiss.

After additional briefing, the magistrate judge issued a

report and recommendation as to the remaining claims. She

recounted that, “at petitioner’s request, the Court dismissed”

the two unexhausted claims, but did not mention Bastidas’s

prior motion for a stay, her own order denying a stay, or the

state’s proposed motion to dismiss. Her recommendation was

that the district court deny relief on the remaining claims and

dismiss the petition with prejudice.

Bastidas objected to the report and recommendation, on

grounds unrelated to any argument regarding the magistrate

judge’s authority. After de novo review, the district judge

overruled the objections and adopted the report and

recommendation, dismissing the petition with prejudice. 

Bastidas timely appealed.
6 BASTIDAS V. CHAPPELL

We granted a certificate of appealability, see 28 U.S.C.

§ 2253(c), as to “whether the magistrate judge exceeded her

authority by issuing, without the parties’ consent, orders

denying appellant’s motion for a stay and abeyance,

dismissing two of appellant’s claims, denying as moot

appellee’s application for leave to file a motion to dismiss,

and striking appellee’s motion to dismiss.”

II.

The authority of magistrate judges “is a question of law

subject to de novo review.” United States v. Carr, 18 F.3d

738, 740 (9th Cir. 1994).

As Mitchell explains more fully, the authority of

magistrate judges is limited by 28 U.S.C. § 636, under which

a magistrate judge may hear and determine nondispositive

matters but not dispositive ones. Mitchell, slip op. at 6–8. As

to dispositive matters, the magistrate judge may go no further

than issuing a report and recommendation to the district

court, which then must undertake de novo review. Id. 

Mitchell holds that “a motion to stay and abey section 2254

proceedings” to exhaust claims in state court “is generally

(but not always) dispositive of the unexhausted claims.” Id.

at 13.

This case presents similar circumstances to those

considered in Mitchell, so we do not repeat its analysis here. 

Several aspects of this case, however, warrant separate

attention. We consider them in turn.
BASTIDAS V. CHAPPELL 7

A.

Bastidas never objected to any of the magistrate judge’s

actions on the grounds that she lacked authority to hear and

decide dispositive matters. The state argues that, as a result,

Bastidas forfeited his right to appellate review of the

magistrate judge’s actions purportedly in excess of her

authority. We disagree.

“[A]s a general matter, a litigant must raise all issues and

objections” before the trial court. Freytag v. C.I.R., 501 U.S.

868, 879 (1991). Thus, in the ordinary course, a party who

does not complain of an issue in the district court forfeits his

right to review of that issue on appeal. In accord with this

general rule, we have held that “a party who fails to file

timely objections to a magistrate judge’s nondispositive order

with the district judge to whom the case is assigned forfeits

its right to appellate review of that order.” Simpson v. Lear

Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996)

(emphasis added). In addition, the Supreme Court has

authorized, but not required, the courts of appeals to adopt

rules conditioning the availability of appellate review of a

magistrate judge’s report and recommendation as to

dispositive matters on the filing of objections to the report

with the district court. Thomas v. Arn, 474 U.S. 140, 155

(1985). Consistent with Thomas’s invitation, we have

articulated a set of rules governing appellate review of

matters in a magistrate judge’s report and recommendation to

which a party fails to object before the district court: While

“failure to object to a magistrate judge’s factual findings

waives the right to challenge those findings, [i]t is well settled

law in this circuit that failure to file objections . . . does not

[automatically] waive the right to appeal the district court’s

conclusions of law,” but is rather “a factor to be weighed in
8 BASTIDAS V. CHAPPELL

considering the propriety of finding waiver of an issue on

appeal.” Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir.

2012) (alterations in original) (internal quotation marks

omitted).1

This case presents a different issue from those covered by

our forfeiture precedents concerningmagistrate judge rulings. 

Bastidas did not fail to object to a magistrate judge’s order on

an avowedly nondispositive matter, as in Simpson, nor to a

magistrate judge’s report and recommendation on an

avowedly dispositive matter, as in Miranda. Here, rather, the

failure to object relates to the (implicit) determination that

particular matterswere nondispositive rather than dispositive. 

Simpson and Miranda do not speak to whether the failure to

object to that determination forfeits the right to appellate

review.

We conclude that a finding of forfeiture—or, for that

matter, waiver—would be inappropriate under the

circumstances of this case. The issue here is different from

the merits of a magistrate judge ruling of either variety in an

important respect: it implicates the structural principles of

Article III. The line Congress drew between dispositive and

nondispositive matters was not a result of happenstance. 

Rather, it reflects the very real concern that, at least absent

consent, delegating the final disposition of cases to magistrate

1 Given our flexible approach, our cases discussing the effects of failure

to object to a report and recommendation are perhaps best understood as

an application of the doctrine of forfeiture, not waiver. See United States

v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc) (distinguishing

waiver and forfeiture); see also Wellness Int’l Network, Ltd. v. Sharif,

135 S. Ct. 1932, 1941 n.5 (2015) (noting the Seventh Circuit’s

clarification that its similar rule governing appellate review ofBankruptcy

Court authority rests on forfeiture, not waiver, doctrine).
BASTIDAS V. CHAPPELL 9

judges would run afoul of the Constitution. See Pacemaker

Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F.2d

537, 542 (9th Cir. 1984) (en banc) (indicating that “[a]

mandatory provision for trial of an unrestricted class of civil

cases by a magistrate and not by Article III judges would

violate the constitutional rights of the litigants”); see also

Anderson v. Woodcreek Venture Ltd., 351 F.3d 911, 914 (9th

Cir. 2003) (observing that section 636(c)’s “voluntaryconsent

requirement was designed to assuage constitutional concerns,

as Congress did not want to erode a litigant’s right to insist on

a trial before an Article III judge”). Thus, the question

whether a magistrate judge correctly determined the limits of

her authority likewise implicates Congress’s concern with

running afoul of Article III. Id.

2

“[T]he Supreme Court teaches that when a federal judge

or tribunal performs an act of consequence that Congress has

not authorized, reversal on appeal may be appropriate” even

in the absence of a proper objection. United States v. Harden,

758 F.3d 886, 890 (7th Cir. 2014) (citing Rivera v. Illinois,

556 U.S. 148, 161 (2009)). For example, in Nguyen v. United

States, 539 U.S. 69 (2003), the Supreme Court vacated our

court’s judgments affirming criminal convictions because the

panel that had heard the cases included an Article IV Judge

from the District for the Northern Mariana Islands, in

violation of the statutory authorization for judges to sit by

designation. Id. at 73, 83. In doing so, the Court rejected the

argument that the lack of an objection before us to the

composition of the panel foreclosed relief on appeal, noting

that it had previously “agreed to correct, at least on direct

review, violations of a statutory provision that embodies a

2 We express no view as to the Article III limits of magistrate judges’

authority.
10 BASTIDAS V. CHAPPELL

strong policy concerning the proper administration of judicial

business even though the defect was not raised in a timely

manner.” Id. at 78 (internal quotation marks omitted). As in

Nguyen, the importance of policing the proper designation of

judicial officers in Article III courts convinces us that review

is warranted despite Bastidas’s failure to object. Cf. Harden,

758 F.3d at 889–91.

Citing Clark v. Poulton, 963 F.2d 1361, 1367 (10th Cir.

1992), the state argues that a magistrate judge’s lack of

authority to hear and determine certain matters does not affect

the district court’s subject-matter jurisdiction, and therefore

that Bastidas’s arguments are forfeited. See also Peretz v.

United States, 501 U.S. 923, 937 (1991); United States v.

Judge, 944 F.2d 523, 525 (9th Cir. 1991). But Nguyen did

not rely on a defect in the court’s subject-matter jurisdiction

to reach the merits despite the lack of an objection. Indeed,

“because the statutory violation [wa]s clear,” Nguyen

expressly declined to consider whether “the participation of

an Article IV judge on the panel violated structural

constitutional guarantees embodied in Article III.” 539 U.S.

at 76 n.9. As Nguyen is a Supreme Court case decided after

Clark, binding upon us, the government’s reliance on Clark

does not persuade us that, even if subject-matter jurisdiction

is not implicated, we cannot reach the merits in this case.

Nor is Peretz to the contrary. Peretz, in which the

defendant’s attorney “affirmatively welcomed” “picking [a]

jury before a magistrate,” expressly declined to reach the

question whether “the conduct of petitioner and his attorney

constitute[d] a waiver of the right to raise . . . on appeal” the

argument that a district judge must oversee jury selection. 

501 U.S. at 925, 927, 932, 940. Instead, Peretz rejected on

the merits the defendant’s arguments that the magistrate
BASTIDAS V. CHAPPELL 11

judge’s role in jury selection violated the statute and Article

III. Id. at 935–36. Peretz, therefore, simply does not speak

to the question in this case of forfeiture of the right to

appellate review.

For the same reason, the Supreme Court’s recent decision

in Wellness International Network, Ltd. v. Sharif does not

resolve the forfeiture issue in this case. Wellness

International held, likewise on the merits, that “Article III is

not violated when the parties knowingly and voluntarily

consent to adjudication by a bankruptcy judge.” 135 S. Ct. at

1939. But the Court remanded the case for a determination

in the first instance both whether the parties did consent, and

also “whether, as Wellness contends, Sharif forfeited his . . .

argument below” regarding the limits of the Bankruptcy

Court’s authority. Id. at 1949. Because the Court did not

reach the forfeiture issue, Wellness International offers no

reason to doubt our conclusion.

Even if we were to conclude that Bastidas forfeited any

argument regarding the magistrate judge’s authority by not

filing objections with the district court, that conclusion would

not foreclose review. Rather, when a party has failed to raise

an issue before the district court, we generally have

“discretion to make an exception” and consider the issue if,

among other circumstances, “‘the issue presented is purely

one of law and either does not depend on the factual record

developed below, or the pertinent record has been fully

developed.’” Ruiz v. Affinity Logistics Corp., 667 F.3d 1318,

1322 (9th Cir. 2012) (quotingBolker v. C.I.R., 760 F.2d 1039,

1042 (9th Cir. 1985)). The issue in these cases—whether a

stay-and-abey motion is a dispositive matter—is a purely

legal one, see Carr, 18 F.3d at 740, and the record has been

fully developed. We thus have discretion to reach this issue
12 BASTIDAS V. CHAPPELL

in any event and, in the alternative, exercise it to do so. See

Mitchell, slip op. at 8–9 n.3.

Our conclusion in this regard is bolstered by the fact that,

unlike the situations considered in both Simpson and

Miranda, Bastidas never received any notice that the

magistrate judge was making the determination that the stay

motion was nondispositive, nor any other clear guidance as to

how he might seek any sort of review of that determination

before the district court. Parties are given notice of their right

to seek review of magistrate judge rulings on nondispositive

issues, see Fed. R. Civ. P. 72(a); Simpson, 77 F.3d at 1174, as

well as review of dispositive ones, see Fed. R. Civ. P. 72(b);

28 U.S.C. § 636(b)(1); Rule 8(b), Federal Rules Governing

§ 2254 Cases (2015).3 But neither Rule 72, nor section 636,

3

Indeed, reports and recommendations are typically accompanied by

detailed warnings, and the magistrate judge provided such warnings with

her eventual report and recommendation in this case:

You are hereby notified that the Magistrate Judge’s

report and recommendation and a proposed order and

judgment have been filed on October 26, 2011, copies

of which are attached.

Any party having objections to the report and

recommendation and the proposed order and judgment

shall, not later than November 15, 2011, file and serve

a written statement of objections with points and

authorities in support thereof before the Honorable

Jacqueline Chooljian, United States Magistrate Judge. 

A party may respond to another party’s objections

within 14 days after being served with a copy. A party

who does not intend to so respond may expedite matters

by filing a notice so indicating prior to the 14-day

response deadline.
BASTIDAS V. CHAPPELL 13

nor any statement from the magistrate judge in this case, told

Bastidas what to do if he disagreed with the magistrate

judge’s determinations that her decisions were

nondispositive. The murkiness ofthe proper procedural route

to seek district court review of this issue, and lack of notice

of the right to such review, confirms our conclusion that

appellate review is warranted in this case despite Bastidas’s

failure to object before the district court.

We recognize, however, that our holding in this regard

carries with it the danger of litigants strategically deciding not

to object to a magistrate judge’s determination that a matter

is nondispositive, only to raise the issue on appeal if the

district court rules against them on other matters. Cf.

Thomas, 474 U.S. at 148. Such conduct would be contrary to

“the underlying purpose of the Federal Magistrates Act . . . to

improve the effective administration of justice.” United

States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 2003)

(en banc).

In our view, the solution to this problem is

straightforward: When a magistrate judge believes she is

issuing a nondispositive order, she may warn the litigants

that, if they disagree and think the matter dispositive, they

have the right to file an objection to that determination with

the district judge. Where litigants have been specifically

Failure to so object within the time limit specified shall

be deemed a consent to any proposed findings of fact. 

Upon receipt of objections, or upon lapse of the time

for filing objections, the case will be submitted to the

District Judge for disposition. Following entry of

judgment and/or order, all motions or other matters in

the case will be considered and determined by the

District Judge.
14 BASTIDAS V. CHAPPELL

warned of the right to object to a magistrate judge’s

determination that a matter is nondispositive and of the

potential consequences of failing to do so, the conclusion that

the issue was forfeited may be warranted.

Here, however, as discussed above, no such warnings

were given to Bastidas. We hold that he did not forfeit his

argument on appeal that the magistrate judge acted in excess

of her authority.

4

B.

Observing that, under our precedents, the question is

“whether the motion to stay and abey at issue . . . was

effectively dispositive of a claim or defense or of the ultimate

relief sought,” Mitchell holds that, in light of Rhines v.

Weber, 544 U.S. 269 (2005), “a motion to stay and abey

section 2254 proceedings” to exhaust claims “is generally

(but not always) dispositive of the unexhausted claims.” 

Mitchell, slip op. at 13. As Mitchell explains, the interaction

of Rose v. Lundy, 455 U.S. 509 (1982), which requires

dismissal of a “mixed” petition that includes unexhausted

claims, and the one-year statute of limitations enacted as part

of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), means that, once a motion to stay and abey the

petition is denied, no matter what a petitioner chooses to do,

he will generally “lose the opportunity ever to present [his

unexhausted] claims to a federal habeas court.” Id. at 14.

4 Bastidas properly raised the issue of the magistrate judge’s authority

in his opening brief. This appeal, consequently, does not implicate our

general rule that “[i]ssues not raised in the opening brief usually are

deemed waived.” Balser v. Dep’t of Justice, Office of U.S. Tr., 327 F.3d

903, 911 (9th Cir. 2003) (internal quotation marks omitted).
BASTIDAS V. CHAPPELL 15

This case differs from Mitchell in one important respect. 

Bastidas, unlike Mitchell, sought a stay to exhaust a claim

that was not already part of his federal habeas petition.5 We

conclude, however, that Mitchell’s rule applies with equal

force in this case. As the state recognized at oral argument,

the stay denial meant that Bastidas would never be able to

assert the new claim in a federal habeas proceeding. The

denial of Bastidas’s stay request was, thus, as dispositive of

his new claim as the denial of Mitchell’s request was of his

existing claims.

The state, arguing to the contrary, relies on language in

S.E.C. v. CMKM Diamonds, Inc., to suggest that “a motion to

stay litigation that ‘is not dispositive of either the case or any

claim or defense within it’ may properly be determined by a

magistrate judge.” 729 F.3d 1248, 1260 (9th Cir. 2013)

(quoting PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 13–14

(1st Cir. 2010)) (emphasis added). But neither CMKM

Diamonds, nor, for that matter, PowerShare, each of which

held that a motion to stay at issue in that case was

nondispositive, involved anypotentiallyforeclosed claims not

already in the complaint, and neither said that a stay motion

5 Another difference between this case and Mitchell is that Mitchell

moved to stay and abey only under Rhines, while in this case the

magistrate judge interpreted Bastidas’s motion as seeking a stay under

Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds

by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007), as well as a

stay under Rhines. See Mitchell, slip op. at 12 n.4 (citing King v. Ryan,

564 F.3d 1133, 1139 (9th Cir. 2009)). Mitchell’s reasoning applies to a

motion for a Kelly stay as well as a Rhines stay, because Kelly, like

Rhines, offers a mechanism to address “the difficulties posed by the

interaction of AEDPA’s statute of limitations and Lundy’s rule.” Id. We

express no opinion regarding the availability of either kind of stay under

the circumstances of this case.
16 BASTIDAS V. CHAPPELL

that is dispositive of a claim not included in the already-filed

complaint is within a magistrate judge’s authority. So the

state’s reliance on the particular turn of phrase used in those

cases is a weak reed.

Nor are we persuaded by the state’s argument that a

motion to stay for the purpose of exhausting claims not

already included in the petition, as in this case, is

nondispositive because it is analogous to a motion to amend

in a new claim. Contrary to the state’s contention that a

motion to amend is always nondispositive, we have never

decided whether the denial of a motion to amend can be,

under some circumstances, dispositive.

U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff,

768 F.2d 1099 (9th Cir. 1985), superseded by statute on other

grounds as recognized in MHC Fin. Ltd. P’ship v. City of San

Rafael, 714 F.3d 1118, 1125 (9th Cir. 2013), concerned a

salvage dispute in which the plaintiffs sought to amend in an

additional claim and defendant after the statute of limitations

had run; a magistrate judge granted the motion. Id. at 1102. 

Without much explanation, we concluded the matter was

nondispositive. Id. at 1102 n.1.

It should be no surprise that the magistrate judge’s

decision to grant a motion to amend is not generally

dispositive; whether the denial of a motion to amend is

dispositive is a different question entirely. Just as “it is of

course quite common for the finality of a decision to depend

on which way the decision goes,” Bullard v. Blue Hills Bank,

135 S. Ct. 1686, 1694 (2015), so the dispositive nature of a
BASTIDAS V. CHAPPELL 17

magistrate judge’s decision on a motion to amend can turn on

the outcome.6

Here, Bastidas sought a stay in the hope of exhausting and

later amending into his petition a new claim against the same

respondent and for the same postconviction relief.7 Under

our caselaw, to determine whether a magistrate judge’s ruling

denying a motion is dispositive, we examine whether the

denial of the motion effectively disposes of a claim or

defense or precludes the ultimate relief sought. See CMKM

Diamonds, 729 F.3d at 1260; see also Flam v. Flam, — F.3d

––, No. 12-17285, 2015 WL 3540771 at *2 (9th Cir. June 8,

2015). We conclude that Bastidas’s motion to stay and abey

6 Bullard held that a bankruptcy court’s refusal to confirm a Chapter 13

plan is not an immediately appealable final order, even though

confirmation of such a plan would be, and “any asymmetry in this regard

simply reflects the fact that confirmation allows the bankruptcy to go

forward and alters the legal relationships among the parties, while denial

does not have such significant consequences.” 135 S. Ct. at 1695.

 

7

 The state relies on Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 595 (7th

Cir. 2006), which held that a magistrate judge was authorized to deny a

motion to amend a new defendant into an existing suit after the statute of

limitations had run. Whether or not Hall’s holding in this regard was

correct, we find the state’s analogy to Hall attenuated, and thus

unpersuasive with regard to the issue before us. Hall considered a motion

to amend the complaint in a civil case to add a new defendant; here, by

contrast, there was no motion to amend, but rather a motion to stay

proceedings with the hope of a possible future amendment. Even that

potential future amendment would, unlike Hall, add a new claim to the

petition but no new party. A district court’s order foreclosing a new claim

against an existing defendant can amount to “a denial of the ultimate relief

sought” against that defendant under some circumstances, CMKM

Diamonds, 729 F.3d at 1260, even if an order foreclosing the addition of

a new defendant is deemed categorically nondispositive of the pending

case.
18 BASTIDAS V. CHAPPELL

was dispositive of the new claim he sought to add to his

petition, and the magistrate judge therefore lacked authority

to deny it.

Because we conclude that Mitchell covers this case, we

vacate the district court’s judgment and remand for further

proceedings. Mitchell, slip op. at 17. The court should

determine de novo whether a stay was warranted with regard

to the new claim at the time Bastidas made his motion, and

may consider the magistrate judge’s order as a report and

recommendation, along with any objections from the parties. 

Id. at 17. If a stay was warranted, the court should decide

“[t]he pertinent question”: “Would the case have progressed

differently [regarding that claim] had a stay been granted,

and, if so, how?” Id. at 18–19.

C.

Bastidas’s other certified issue is whether the magistrate

judge’s order granting Bastidas’s “notice of withdrawal” and

dismissing the two unexhausted claims in his petition without

prejudice was a dispositive order. We hold that it was not.

Bastidas never sought a stay to exhaust the two

unexhausted claims originally a part of his petition. Instead,

he withdrew those claims after the state sought to dismiss the

petition as mixed but before any ruling by the magistrate

judge as to whether it was.

Bastidas did mention the earlier stay denial in his notice

of withdrawal, suggesting that he may have believed that the

magistrate judge’s earlier (unauthorized) order foreclosed the

availability of a stay as to the two unexhausted claims in the

petition. But any such belief was baseless. Even if he could
BASTIDAS V. CHAPPELL 19

not establish good cause under Rhines, Bastidas could at least

have sought a Kelly stay as to those claims. The magistrate

judge’s determination that the new claim was time barred

would have had no bearing on Bastidas’s eligibility for a

Kelly stay as to the claims that were already part of his

petition.

The orders the magistrate judge did issue with regard to

the unexhausted claims in the original petition were routine

housekeeping matters. It may very well be that Bastidas filed

his notice of withdrawal because he expected the two claims

would be dismissed. But any impetus in that direction came

from the state, which had filed a motion for leave to file a

motion to dismiss the petition as mixed, not the magistrate

judge, who had not acted on the motion. The magistrate

judge only permitted Bastidas to give up the unexhausted

claims in his petition when he asked to do so. A magistrate

judge’s order doing what a habeas petitioner has asked,

against the backdrop of a proposed motion to dismiss, does

not equate to a dispositive order.

We do not mean to suggest that a magistrate judge’s order

granting a party’s motion to dismiss his own claims will

always be nondispositive. There may well be situations in

which a magistrate judge takes unauthorized steps that

ultimately force a litigant to move to dismiss some of his

claims. Cf. Hunt v. Pliler, 384 F.3d 1118, 1124 (9th Cir.

2004) (holding that the magistrate judge exceeded his

authority by holding the habeas petition mixed and issuing

“an order, not authorized by the statute, that required Hunt to

forfeit the claims he found unexhausted or face dismissal of

the entire petition” (emphasis added)). We hold only that

those circumstances are not present here. Under no

compulsion from the magistrate judge, Bastidas sought to
20 BASTIDAS V. CHAPPELL

dismiss two of his claims. The magistrate judge was within

her authority in granting that request.8

III.

We vacate the judgment of the district court and remand

for proceedings consistent with this opinion.9

VACATED AND REMANDED.

8 Because we reject Bastidas’s argument on this basis, we need not

address the state’s contentions that the notice of withdrawal was selfexecuting or that Bastidas consented to the magistrate judge’s authority to

dismiss his claims.

We also certified the question whether the magistrate judge’s denial

as moot of the state’s motion for leave to file a motion to dismiss, and

order directing the clerk to strike the proposed motion to dismiss, were

dispositive. Bastidas has not argued that they were. We conclude those

orders, each of which was without prejudice, were quintessential

housekeeping matters, and the magistrate judge was authorized to issue

them.

9 We do not reach Bastidas’s uncertified issues, as they address the

merits of the stay denial and of the district court’s denial of relief on

Bastidas’s claim of ineffective assistance of counsel.