F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

P A B L O B A S T I D A S , Petitioner-Appellant

,

v.

K E V I N C H A P P E L L , W arden, Respondent-Appellee

. No. 12-55024

D.C. No. 2:07-cv-08390-MMM-J C

OPI NI ON

A ppeal from the United States District Court for the Central District of California Marg a ret M. Morrow, District J udg e, Presiding

Arg ued and Submitted December 8, 2014—Pasadena, California

F iled J uly 1, 2015

B efore: Harry Preg erson, Kim McL ane W ardlaw, and Marsha S. B erz on, Circuit J udg es.

Opinion by J udg e B e rz onB A S T I D A S V

. C H A P P E L L

2

SUMMARY *

Habeas Corpus

V a c a t i n g t h e district court’s judg ment dismissing a h abeas
corpus petition and r ema n d ing

, the panel held that the petitioner’s motion to stay and ab e y h i s 2 8 U.S.C. § 2254 habeas petition in o rder to ex haust in state court a claim that

was not y et part of his f

ederal habeas p e tition was d ispositive of that new unex hausted c laim, such that the mag istrate judg e was without authority

to hear a nd determine the motion, but rather was required to submit a report and recommendation to the district court.

The panel rejected the petitioner’ s arg ument that the
mag istrate judg e lacked authority to g rant h i s request to remove two unex hausted claims from his petition.

COUNSEL

Mark Ray

mond Droz d owski, Deputy F ede r a l Public Defender, Michael David W einstein (arg ued), Assistant F ederal Public Defender, a nd Raj Shah, Certified L aw Student, F ederal Public D efender’s Of fice, L os Ang eles, California, for Petitioner-Appellant.

Kamala Harris, Attorney G e n eral, L ance W inters, Senior Assistant Attorney General, Mic h a el J o hnsen, Supervising Deputy Attorney General, a nd K im Aarons (arg

ued) and Ana

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.B A S T I D A S V

. C H A P P E L L 3

R. Duarte, Deputy Attorney s General, Office of the California Attorney General, L os A ng eles, California for RespondentAppellee.

OP INION

B ERZ ON, Circuit J udg e :

Mitchell v. Valenzuela

, filed today

, holds that a motion to

s t a y and abey a 2 8 U.S.C. § 2254 habeas corpus petitio n t o

ex h aust cla i m s in state court is g enerally ( but not alway s) dispositive of the unex h a u s t e d claims, and that a mag istrate judg e therefore g enerally cannot hear and determine s u c h a motion. Mitchell v. Valenzuela , No. 1 2-55041, slip op. at 3 (9th Cir. J u ly 1, 2015). I n Mitche l l

, the petitioner soug ht a stay in order t o ex haust claims that were already part of his petition. I

d

. at 4. Here, the petitioner, Pablo B astidas, moved to stay and abey his petition w hile he e x hausted a claim that

was not y et a part of his federal habeas petition. W e hold that B astidas’s motion was likewise d ispositive of that new

unex h a usted claim, such that the ma g istrate judg e was without authority to “ hear and det e rm i n e ” it, b ut rather was required to submit a report and recommendation to the district
court. 2 8 U

. S

. C. § 636(b)(1)(A)–(B ). W e also reject B astidas’s arg ument that the mag istrate jud ge lacked authority to g rant B astidas’s re q u est to remove two

unex h a usted claims from his petition.

I

.

Pablo B astidas was convicted at a jury trial in California
court o f f our c ounts of second-degree robbery

, three c ounts of possession o f a firearm by a felon, and one count of assaultB A S T I D A S V

. C H A P P E L L

4

with a firearm. W ith various enhancements found true by the jury , he was sentenced to a total of fifty -five y ears in prison.

After the California c ourts denied relief on direct appeal and state habeas review, B astidas, represented by cou n s e l

, filed the federal habea s petition at issue here. H e conceded in h is petition that two of the four c laims he asserted h ad not been presented to the Calif o r n ia Supreme Court. The case

was referred to a mag istrate judg e, who was authoriz ed b y the district court “to c onsider preliminary matters a nd c onduct all further hearing s as may be appropriate or necessary ,” a nd d i r e c t e d t o t h e n p r e p a re a n d file a report a n d recommendation.

B a s t idas’s attorney subsequently withdrew. B a s t i d a s f i l e d

a pro se motion to stay and a bey the proceeding s, noting that he had f iled a new petition in state court asserting that his constitutional rig hts had b e e n violated when the tri a l c o u rt ordered his “una[ d] judicated weapon enh a n cements” to run consecutively to the principal charg e. T h a t claim was not part of B astidas’s ex isting federal habeas petition; rather, he
soug h t a stay to ex haust the cla i m so that he could amend it into h is petition. The sta t e d i d n ot file a response to the motion to stay and abey

.

The mag istrate judg e denied the motion to stay and abey

. She stated that, under Rhines v. W eber

, 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 B astidas to amend in the new claim on c e i t was ex hausted. B ut the mag istrate judg e d enied the stay under Kelly

, b ecause, she held, the claim was already time-barred. Equitable tolling w a s not

w a r r a nted, the mag istrate judg e h eld, and the n ew claim did
not relate back to the filing of t h e o rig inal petition. TheB A S T I D A S V

. C H A P P E L L 5

m a gi s t r ate judg e also decided that a stay under Rhines wa s foreclosed, both as time barred and as lacking g ood cause.

The state subsequently filed a motion for leave to file a motion to dismiss, as wel l a s a proposed motion to dismiss,
arg uing that two of the f

our claims in B astidas’s petition were

unex h a usted. Shortly thereafter, before the mag istrate judg e acted on the state’s motion, B astidas filed a pro se “notice o f withdrawal,” conceding that two claims in the habeas petition
were not ex hausted, n oting that the court had already denied his earlier motion for a stay as to the new claim

, and asking
t h e c o urt to d ismiss the two unex h austed claims in h i s p e t i t ion. The mag istrate judg e g ranted B astidas’s request, dismissed the two claims, d enied the state’s motion for leave
to file the motion to d i s m i ss a s moot, and directed the clerk to strike the proposed motion to dismiss.

After a dditional briefing

, the mag is t r ate judg e issued a report and recommendation as to the remaining claims. She recounted that, “at petitioner’s request, the Court dismissed” the two u nex hausted claims, but did n o t mention B astidas’s prior motion for a stay , her own o r d e r d eny ing a stay , or the state’s p r oposed motion to dis m i s s. Her r ecommendation was that the district court d eny relief o n the remaining claims a nd dismiss the petition with prejudice.

B a stidas o bjected to the report and r ecommendation, on g rounds unrelated to any arg ument reg arding the mag istrate judg e’s authority

. After de novo review, the district ju d ge overruled the o bjections a n d a d opted the report a nd recommendation, dismissing the petition w ith pr e j u dice. B astidas timely

appealed.B A S T I D A S V

. C H A P P E L L

6

W e g ranted a certificate of appealability

, s e e 28 U .S.C. § 2253(c), as to “whether the mag istrate judg e ex ceeded her authority by issuing

, without the p arties’ consent, ord e rs deny ing appellant’s motion for a stay and abey ance, dismissing two of appellant’s clai m s, deny ing as moot appellee’s application f

o r leave to file a motion to dismiss, and striking appellee’s motion to dismiss.”

I I

.

The authority o f m a g istrate judg es “is a question of law subj ect to de novo review.” United States v. Carr
, 18 F .3d 738, 740 (9th Cir. 1994).

As Mitchell e x plains more fully

, t h e authority o f
mag istrate judg es is limited by 28 U.S.C. § 636, under which

a mag istrate judg e may hear and d etermine nondispositive
matters but not dispositive ones. Mitchell

, slip op. at 6–8. A s to d ispositive matters, the mag istrate judg e may g o no f urther than issuing a report and recommendation t o the district court, which then m u s t u ndertake de novo r eview. Id

. Mitchell holds that “a motion to stay and abey section 2254 proceeding s” to ex haust claims i n s tate court “is g enerally (but not alway s) dispositive of the unex hausted claims.” Id

. at 13.

This c ase presents similar circumstances t o t hose considered in Mitchell

, so we d o not repeat its analy sis here. Several aspects of this case, however

, w a r rant separate attention. W e consider them in turn.B A S T I D A S V

. C H A P P E L L 7

A.

B a stidas never objected to any of the mag istrat e j u dg e’s actions on the g rounds that she lacked authority to hear a nd decide dispositive matters. T he state arg ues that, as a r esult, B astidas forfeited his rig ht to a p p ellate review of the
mag istrate judg e’s actions purportedl y i n e x cess of her authority . W e disag r e e

.
“[ A] s a g eneral matter, a litig ant must raise all issues a nd objections” before the trial court. F reytag v. C.I.R.
, 501 U.S. 868, 879 (1991). T hus, in the ordinary course, a party w ho does not complain o f an issue in the district court forfeits his rig ht to review of that issu e o n appeal. I n accord with this
g eneral rule, we have h e ld that “ a party wh o f ai ls to file timely o b jections to a mag istrate judg e’s nondispositive order with th e district judg e to whom the case is assig ned forfeits its rig ht t o appellate review of that order.” Simpson v. Lear Astronics Corp.
, 77 F .3 d 1170, 1174 (9th Cir. 1 996) (emphasis a d ded). I n addition, the Supreme Court has authoriz ed, but not required, the cou r t s of appeals to adopt rules conditioning the availabil i t y of appellate review of a

m ag istrate judg e’s report a nd r e c ommendation as t o dispositive matters o n the filing of objections to the report with the district court. Thomas v

. Arn
, 474 U .S. 1 40, 155 (1985). Consistent with Thomas ’s invitation, we have articul a t e d a set of r

ules g overning appellate r eview o f
matters in a mag istrate judg e’s r eport and recommendation to which a party fails to object befor e t he district court: W hile “failure t o o bject to a mag istrate judg e’s factual finding s waives the rig ht to challeng e those finding s, [ i] t is well settled law in this c ircuit that failu r e t o f i le objections

. . . does not [ a u tomatically ] w aive the rig ht to appeal the district court’ s conclusion s of law,” but is rather “ a factor to be weig hed inB A S T I D A S V

. C H A P P E L L

8

c o n s i d ering the propriety of finding waiver of an issue o n appeal.” Miranda v. Anchondo , 684 F .3d 844, 848 (9th Cir. 2012) (alterations in orig inal) (internal quotation marks omitted). 1

This case presents a different issue from those covered b y

our forfeiture precedents concerning mag istrate j u d g e ruling s. B astidas did not fail to object to a mag istrate judg e’s order on

an avowedly nondispositive matter, as in Simpson
, n o r t o a

ma g istrate judg e’s report and recommendation on an avowedly dispositive matter, as in M iranda

. Here, r ather, the fa i l ure to object relates to the (implicit) determination that particular mat

t e r s w e re n ondispositive rather than dispositive. Simpson and Miranda do not speak to whether the failure to object to that determination f orfeits the rig ht to appellate review.

W e conclude that a finding of forfeiture—or, f or that

m a t t er , w a i v e r

— w o u l d be inappropriate under t h e circumstances of this c ase. The issue h e re is different from the merits of a mag istrate judg e ruling of either v a riety in an important respect: it implicates t h e s tructural principles o f Article I I I

. The line Cong ress drew b etween dispositive and

n o n d ispositive matters was not a result of happenstanc e. Rather, i t reflects the very real c oncern that, at least absent consent, deleg ating the final disposition of cases to mag istrate

1 Giv en o u r f

l ex ib le ap p ro ach

, o u r cases d iscu ssin g th e ef f ects o f f ailu re to o b j ect to a rep o rt an d reco m m en d atio n are p erh ap s b est u n d ersto od as

an ap p l icatio n o f th e d o ctrin e o f f o rf eitu re, n o t w aiv er. S

ee U n ited S ta tes

v. Perez
, 1 1 6 F

. 3 d 8 4 0, 8 4 5 (9 th Cir. 1 9 9 7 ) (en b an c) (d istin g u ish in g

w aiv er an d f

o rf eitu re); see a lso W

elln ess In t ’l Netwo rk, Ltd

. v. S h a rif

, 1 3 5 S. Ct. 1 9 3 2
, 1 9 4 1 n .5 (2 0 1 5 ) (n o tin g th e Sev en t h C ir c u i t ’s clarif icatio n t h at i ts sim ilar ru le g o v ern i n g ap p ellate rev iew o f B an k ru p tcy Co u rt au th o rity

rests o n f orf eitu re, n o t w aiv er, d o ctrin e).B A S T I D A S V

. C H A P P E L L 9

j u d ge s w ould run afoul o f the Constitution. See Pacemake r Diagnostic Clinic of Am., Inc. v. Instromedix, Inc. , 725 F .2d 537, 542 (9th Cir. 1984) (en banc) (indicating that “[ a] mandatory p rovision for trial of an u nrestricted class of civil

cases by a mag istrate an d n o t b y Article I I I judg es would violate the c onstitutional r ig hts of the litig ants”); se e a lso Anderson v. W

oodcreek Venture Ltd.

, 351 F .3d 911, 914 (9th Cir. 2003) (observing that section 636 ( c ) ’ s “ v o l u ntary consent requirement was desig ned to a ssuag e constitutional concerns,

as Cong ress did not want to erode a litig ant’s r ig ht to insist on

a trial b efore an Article I I I judg e”). Thus, t h e q u e s tion whether a mag istrate judg e correctly determined the limits o f her authority likewise implicate s Cong ress’s c oncern with running afoul of Article I I I

. Id

. 2

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

or tribunal performs an act of consequence that Cong ress has not authoriz ed, reversal on appeal may be appropriate” even in the absence of a p roper objection. United States v. Harden

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

. Illinois

, 556 U.S. 148, 1 61 (2009)). F o r ex ample, in Nguyen v

. United States
, 539 U.S. 69 (2003), the Supreme C o u r t vacated our court’s judg ments a ffirming c riminal convictions because the panel that had heard the ca s e s i ncluded an Article I V J udg e from the District f

or the Northern M a r i a na I slands, in viola t i on of the statutory a uthoriz ation for judg es to sit b y desig nation. Id

. at 73, 8 3. I n doing so, the Court rejected the
arg ument that the lack of an obj ec t ion before u s to the composition o f the panel foreclosed relief on appeal, not i n g that it had previously “ag reed to corr e ct, at least on direct review, violations of a statutory provision that embodies a

2 W e ex p ress n o v iew as t o t h e A rticle III lim its o f m ag istrate j u d g es’

au th ority

.B A S T I D A S V

. C H A P P E L L

10

strong policy concerning the p roper administration of judicial b u s iness even thoug h the defect was not raised in a time l y manner.” Id

. at 78 ( internal quotation marks omitted). As in Nguyen
, the importance of p olicing the proper desig nation o f judicial officers in Article I I I courts convinces us that r eview is warranted despite B astidas’s failure to object. Cf. Harden

, 758 F .3d at 889–91.

Citing Clark v. Poulton

, 963 F .2d 1361, 1367 (1 0 t h C i r. 1992), the state arg ues that a m ag istrate judg e’s lack o f authority to hear and determine certain matters does n ot affect the district court’s subject-matter jurisdiction, and therefore that B astidas’s a rg uments are forfeited. See also Peretz v

. United States
, 501 U.S. 923, 937 ( 1 9 91); United S tates v

. Judge

, 944 F .2d 523, 525 (9th Cir. 1 991). B u t Nguyen did
not r ely o n a defect in the court’s subject-matter jurisdiction
to reach the merits d e s p i t e the lack o f an objection. I ndeed, “because the statutory violation [ wa] s clear,” Nguyen

ex p ressly declined to consider whether “ the participation o f

an Article I V judg e on the panel violated structural constitutional g uarantees embodied in Article I I I .” 539 U.S. at 76 n.9. As Nguyen is a Supreme Court case decided a fter Clark

, binding upon us, the g overnm e n t ’ 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 P eretz to the contrary

. Peretz
, in w hic h t h e defendant’s attorney “affirmatively welcomed” “picking [ a] jury before a mag istrate,” ex p r e ssly declined to reach the question whether “the conduct of petitioner and his attorney constitute[ d] a waiver o f the rig h t to raise . . . on appeal” the
argu m en t that a district judg e must oversee jury selection. 501 U.S. at 925, 927, 932, 940. I nstead, Peretz r e jected on the m erits the defendant’s a rguments that the mag istrateB A S T I D A S V

. C H A P P E L L 11

judg e’s role in jury selection violated the statute and Article I I I

. Id

. at 935–36. Peretz
, t h e r ef o re, simply does not speak
t o t h e question in this case of f orfeiture of the rig ht t o appellate review.

F or the same reason, the Supreme Court’s recent decision in W e llness International Network, Ltd. v. Sharif d o e s not resolve the f

orfeiture issue in this case. W e l lness International held, likewise on the merits, that “Article I I I is

n o t violated when the p arties knowing ly and voluntar i l y consent to adjudication by a b ankruptcy judg e.” 135 S. Ct. at 1939. B ut the Court remanded the case for a determination in the first instance both w hether the parties d id c onsent, a nd also “whether, as W ellness contends, Sharif forfeited his

. . . arg ument below” rega rding the limits of the B ankruptcy Court’s authority

. Id

. at 1949. B ecause the Court did not

r each the forfeiture issue, W ellness International o ffers n o reason to doubt our conclusion.

Even if we were to conclude that B astidas forfe i t e d any arg ument reg arding the mag istrate judg e’s authority by not filing objections w ith the district court, that conclusion would
not foreclose review. Rather, when a party has failed to raise

an issue before the district court, we g eneral l y h a v e “discretion to ma k e a n e x ception” a nd consider the issue if,
among o ther circumstances, “ ‘the i ssue presented is purely

one of law and eit h e r does not depend o n the factual record developed below, or the pertinent r ecord h a s been f ully developed.’” Ruiz v. Affinity Logistics Corp.
, 667 F

. 3d 1318, 1322 ( 9th Cir. 2 012) (quoting Bolker v. C.I.R
., 760 F .2d 1039, 1042 (9th Cir. 1985)). The issue in these cases—whether a stay -and-abey motion i s a d ispositive matter—is a purely leg al one, see Carr
, 18 F .3d at 740, a n d t h e r ecord has been fully developed. W e thus have discretion to reach this issueB A S T I D A S V

. C H A P P E L L

12

in any event and, in the alternative, ex ercise it to do so. See Mitchell , slip op. at 8–9 n.3.

Our c onclusion in this reg ard is b olstered by the f a ct that, unlike the si t u a tions considered in both Simpson a nd Miranda

, B astidas never r e c e ived any notice that the
mag istrate judg e was making the determination that the stay motion was nondispositive, n or any other clear g uidance as to how he mig ht seek any sort of review of that dete rmination before the d istrict court. Parties a re g iven notice of their rig ht
to seek review of mag istrate judg e ruling s on nondispositive issues, see F ed. R. Civ. P. 72(a); Simpson
, 77 F .3d at 1174, a s well a s review of dispositive ones, see F ed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1); Rule 8(b), Fe d e r al Rules Governing § 2254 Cases (2015). 3 B ut neither Rule 72, nor section 636,

3 In d eed

, rep o rts an d r eco m m en d atio n s are ty

p ically acco m

p an i ed b y d etailed w arn i n g s, an d th e m ag istrate j u d g e p ro v id ed su ch w arn in g s w i th h er ev en tu al rep o rt an d reco m m en d atio n

in th is case:

Yo u are h ereb y n o tif

ied th at th e Mag istrate J u d g e’ s rep ort an d reco m

m en d atio n an d a p ro p o sed o rd er an d j u d g m en t h av e b een f

i led o n O cto ber 2 6
, 2 0 1 1
, co pies

o f w h i ch are attach ed

.

A n y p arty h av in g o b

j ectio n s to t

h e rep o rt an d

reco m m en d atio n an d th e p ro p o s ed o rd er an d j u d g m en t sh all, n o t later th an No v em ber 1 5
, 2 0 1 1
, f

ile an d serv e

a w ritten s t a t em en t of o b

j ectio n s w ith po in ts an d

au th orities in s u

p po rt th ereo f b ef

o re th e Ho n o rab le J acq u elin e Ch o o lj ian , Un ited States Mag istrate J u d g e. A p arty m ay resp o n d to an o th er p arty ’ s o b j ectio n s

w ith in 1 4 d ay s af

ter b ein g serv ed w ith a co p y

. A p arty

w h o d o es n o t in ten d to so resp on d m ay ex p ed ite m atters b y f ilin g a n o tice so in d i catin g p r i o r to th e 1 4

- d ay resp o n s e d ead lin e.B A S T I D A S V

. C H A P P E L L 13

nor any statement from the mag istrate judg e in this c ase, told B astidas wha t t o d o if he disag reed with the mag istrate j u d g e ’ s d e t e r m i n a t i o n s t h a t h e r d e c i s i o n s w e r e nondispositive. The murkiness o f the p roper procedural route to seek district court review of this i s s u e, and lack of notice of the rig ht to such revi ew, c onfirms our conclusion that appellate review is warranted in this c ase despite B astidas’s failure to object before the district court.

W e recog niz e, however, that o ur holdin g in this reg ard carries with it the dang er of litig ants strateg ically deciding not to object to a mag istrate judg e’s determin ation that a matter i s n o n d i spositive, only to raise the issue on appeal if the district court rules ag a i nst them on other matters. Cf. Thomas

, 474 U.S. a t 1 48. Such conduct w ould be contrary to “the underly ing purpose of the F ederal Mag istrates Act

. . . to improve the effective administration o f justice.” United States v. Reyna-Tapia
, 328 F .3d 1114, 11 2 2 ( 9 th Cir. 2 003) (en banc).

I n o ur view, the solution to this p roblem i s straig htforward: W hen a mag istrate judg e believe s s he is issuing a nondispositive order, she m a y warn the litig ants that, if they disagr e e and think the matter dispositive, they have the r i ght to file an objection to that determination with the district judg e

. W h e r e litig a n ts have been specifically

Failu re to s o o b

j ect w ith in th e tim e lim i t sp ecif ied sh all b e deem ed a co n sen t t o an y p ro p o sed f

in d in g s o f f

act. Up o n receip t o f o b

j ectio n s, o r u p o n lap se o f th e tim e f o r f i lin g o b j ect i o n s, th e case w ill b e su b m itted to th e District J u d g e f

o r d isp o sitio n

. Fo llo w in g en tr y of j u d g m en t a n d / o r o rd er, all m o tio n s o r oth er m atters in th e case w ill b e co n sid ered an d determ in ed b y th e District J u d g e.B A S T I D A S V

. C H A P P E L L

14

w a rned of the rig ht to object to a mag istrate judg e ’s determination that a matter is nondispositiv e and of the potential consequences of failing to d o so, the conclusion that the issue was forfeited may be warranted.

Here, however, as discussed above, no such warning s

were g iven to B astidas. W e hold that he did no t forfeit his
arg ument on a

ppeal that the mag istrate judg e a cted in e x cess of her authority

. 4

B

.

O b s e r ving that, under o ur precedents, the question is “whether the moti o n t o s t ay and abey at issue

. . . was effectively d ispositive of a claim or defense or o f the ultimate relief soug h t,” Mitchell holds that, in li gh t of Rhines v

. W eber

, 544 U.S. 2 69 (2005), “ a mo tion to stay a nd abey section 2254 proceeding s” to ex haust cl aims “is g enerally (but not alway s) dispositive of the une x h a u s ted claims.” Mitchell

, slip op. at 13. As Mitchell ex plains, the interaction of Rose v. Lundy

, 4 5 5 U.S. 509 (1982), which requires dismissal of a “mix ed” petition that incl u d e s unex hausted claims, and the one-y ear statute of limitations enacted as part of the A ntiterrorism a

nd Effective D eath Penalty Act of 1996 (AEDPA), means th at , o nce a motion to stay and abey the petition is denied, no matter w hat a p etitioner chooses to do, he will ge n e r ally “lose the opportunity ever to present [ his

unex h a usted] claims to a federal habeas court.” Id . at 14.

4 B astid as p ro perly raised th e i ssu e of th e m ag i s t r ate j u d g e’ s au t h o rity in h is o p en in g b rief

. T h is ap peal, co n seq u e n t l y , d o es n ot im p licate ou r g en eral ru le t

h at “ [i]ssu es n o t raised in th e o p en in g brief u su a l l y a r e d eem ed w aiv ed .” Ba lser v. Dep ’t o f Ju stice, Office o

f U.S

. Tr.
, 3 2 7 F.3 d 9 0 3 , 9 1 1 (9 th

Cir. 2 0 0 3 ) (in tern al q u o tatio n m ark s o m itted ).B A S T I D A S V

. C H A P P E L L 15

This case differs from Mitchell in one important respect. B astidas, unlike Mitchell, soug h t a s t a y to ex haust a claim that was not already

part of his federal habeas petition. 5 W e conclude, however, that Mitchell ’s rule applies with e q ual for c e i n t h i s case. As the state r e c og n iz ed at oral arg ument, the stay denial meant that B astidas would never be a b l e to assert the new claim in a f ederal habeas proceeding

. The denial of B a stidas’s stay request was, thus, as dispositive o f his new c laim as the denial of Mitche ll’s request w as of his

ex isting claims.

The state, arg uing to the contr a r y , r elies on lang u ag e in S.E.C. v. CMKM Diamonds, Inc.
, to sug g est that “a motion to stay litig ation that ‘is not dispositive of either the case or any claim or defense within it ’ may properly be determined b y a mag istrate judg e.” 729 F .3 d 1 2 4 8, 1260 (9th Cir. 2 013) (quoting PowerShare, Inc. v. Syntel, Inc.
, 597 F .3d 10, 13–14 (1st Cir. 2010)) (emphasis added). B ut neither CMKM Diamonds

, nor, f

or that matter, PowerShare

, each of which held that a motion to s t a y a t issue in that case was

n o n d ispositive, involved any potentially fore c l o s e d c l a i m s n o t already in the complaint, and n ei t h e r s aid that a stay motion

5 A n o th er d if

f eren ce b etw een th is case an d M itch ell i s t h a t M i tch ell

m o v ed to stay an d ab ey on ly u n d e r R h i n es , w h ile in th i s case th e

m ag istrate j u d g e in terp r e t ed Bastid as’ s m o tio n as seek in g a stay u n der Kelly v. S ma ll

, 3 1 5 F.3 d 1 0 63 (9 t

h Cir. 2 0 03 ), o verru led o n o th er g ro un d s b y R o b b in s v. Ca rey , 4 8 1 F .3 d 1 1 4 3
, 1 1 4 9 (9 th Cir. 2 0 0 7 ), as w ell as a

s t a y u n d er Rh in es. S

ee Mitch ell

, slip o p

. at 1 2 n .4 (citin g Kin g v. R y a n , 5 6 4 F.3 d 1 1 3 3, 1 1 3 9 (9 th Cir. 20 0 9 )). Mitch ell ’ s reaso n in g ap p l ies to a

m o tio n f o r a Kelly stay as w ell as a Rh in es stay , b ecau s e Kelly

, lik e Rh in es , o f

f ers a m ech an ism to ad d ress “ t h e d if f icu lties p o sed by th e in teractio n of A EDP A ’ s s tatu te o f lim itatio n s an d Lu n d y ’ s ru l e.” Id

. W e

ex p ress n o o p in i on

reg ard in g th e av ailab ility o f eith er k in d o f

stay u n der th e circu m stan ces o f

th i s case.B A S T I D A S V

. C H A P P E L L

16

that is dispositive of a c laim not included in the already -filed complaint is within a mag istrate j u d ge ’s authority

. So the state’s reliance on the particular turn of phrase used in those cases is a weak reed.

Nor are w e persuaded by the state’s arg ument that a motion to stay for the purpose of ex h a u s t i n g claims not already included in the petition, as in this case, is nondispositive because it is a n a log ous to a motion to amend in a new claim. Contrary to the state’s content i on that a

mo t i o n to amend is always nondispositive, we h ave never decided w h e ther the denial of a motion to amend c an 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 1 118, 1125 (9th Cir

. 2013), concerned a salvag e dispute in w hich the plaintiffs soug h t to a mend in an additional claim and defendant a fter the statute of limitations had run; a mag istrate judg e g ranted the motion. Id

. at 1102. W ithout much ex planation, we c o n cluded the matter was nondispositive. I

d . at 1102 n.1.

I t should be no surprise t hat the mag istrate judg e’s decision to g

rant a motion to amend i s n o t g enerally dispositive; whether the d enial of a motion to amend is dispositive is a different questio n entirely

. J ust as “it is o f

course quite common f

o r the finality of a decision to depend

on which way the decision g oes,” B ullard v. Blue Hills Bank

, 135 S. Ct. 1686, 1694 (2015), so the dispositiv e n ature of aB A S T I D A S V

. C H A P P E L L 17

mag istrate judg e’s decision on a motion to amend can turn on the outcome. 6

Here, B astidas soug ht a stay in the h ope of e x hausting a nd later amending into his petition a new claim ag ainst the same respondent and for the same postconviction relief. 7 Under

our caselaw, to determine whether a mag istrate judg e’s ruling deny ing a motion is d ispositive, we ex amin e whether the denial of the motion effectively disposes of a c l a i m o r defense or precludes the ultimate relief soug ht. S e e C M KM Diamonds

, 729 F .3d a t 1260; see a lso Flam v. Flam

, — F .3d ––, No. 12-17285, 2015 W L 3540771 at *2 ( 9th Cir. J une 8, 2015). We conclude that B astidas’s motion to stay and abey

6 Bu lla rd h eld th at a ban k ru ptcy co u rt’ s ref u sal to co n f

irm a Ch ap ter 1 3
p lan is n o t an im

m ed iately ap p ealab l e f

in al o rd er, ev en th o u g h

co n f irm atio n o f su ch a p l an w o u ld b e, an d “ an y asy m m etry in th is reg ard sim p ly ref lects th e f

act th at co n f

irm atio n a llo w s th e b an k ru p t cy to g o f o rw ard an d alters th e leg al relatio n sh ip s am o n g th e p arties, w h ile d en i al d o es n o t h av e su ch

sig n if ican t co n seq u en ces.” 1 3 5 S. Ct. at 1 6 9 5

.

7 T h e state relies o n Ha l l v. No rfo lk S . Ry. Co

. , 4 6 9 F.3 d 5 90 , 5 9 5 (7 th Cir. 2 0 0 6 ), w

h i ch h eld th at a m ag istrate j u d g e w as au t h o r i z e d t o den y a

m o tio n to am en d a n ew d ef en dan t in to an ex istin g su it af ter th e statu te of lim itatio n s h ad r u n

. W h eth er o r n o t Ha ll ’ s h o ld in g in th is reg ard w as

co r r e ct, w e f

in d th e s tate’ s an alo g y to Ha ll atten u ated

, an d th u s

u n p ersu asiv e w ith reg ard to th e issu e b ef o re u s. Ha ll co n sid ered a m o tio n to am en d th e co m

p lain t in a civ il case to ad d a n ew def en d an t; h ere, b y

co n trast, t

h ere w as n o m o tio n to am en d, b u t rath er a m o tio n t o stay p ro ceed in g s w i th th e h o p e o f a p o ssib le f u tu re am en d m en t. Ev e n t h a t p o ten tial f

u tu re am en d m en t w o u l d

, u n lik e Ha l l

, ad d a n ew claim to th e p etitio n bu t n o n ew p arty

. A d istrict co u rt’ s o rd er f o reclo sin g a n ew claim
ag ain st an ex i stin g d ef

en dan t can am o u n t to “ a d en ial o f th e u ltim ate relief

so u g h t” ag ain st th at d ef en dan t u n d er s om e circu m stan ces, CMKM Dia mo n d s , 7 2 9 F.3 d at 1 26 0
, ev en if an o rd er f o reclo sin g th e ad d itio n of

a n ew d ef en d an t is d e e m ed categ o rically n o n d isp o sitiv e o f th e p en d in g

case.B A S T I D A S V

. C H A P P E L L

18

was d ispositive of the new claim he soug h t to add to his petition, and the mag istrate judg e therefore lacked authority to deny it.

B e c a u se we conclude that Mitchell covers this case, we vacate the district co u rt ’s judg ment and remand for f urther proceeding s. Mitchell

, sl i p op. at 17. The court should determine de novo whether a stay was warranted with reg ard
to the new claim at the time B astidas made his mo t i o n , and
may consider the mag istrate j u d g e’s order as a r e port a nd recommendation, along with any objections from the parties. Id

. at 17. I f a stay was warranted, the court should decide “[ t] he pertinent question”: “W ould the case have prog ressed differently [ reg arding that claim] h a d a stay been g rante d, and, if so, how? ” Id

. at 18–19.

C.

B a stidas’s other certified issue is whether the mag istrate judg e’s order g ranting B astidas’s “notice of w ithdrawal” a nd dismissing the two u nex hausted claims in his petition without prejudice was a dispositive order. W e hold that it was not.

B a stidas n e v e r soug h t a stay to ex haust the two

unex h a usted c laims orig inally a part of h is petition. I nstead, he withdrew those claims after the state soug ht to d ismiss the petition as mix ed but before any ruling by the m a g istrate judg e as to whether it was.

B a stidas did mention the ear l i e r stay denial in h is notice of withdrawal, sug g e sting that he may have believed that the
mag istrate judg e’s earlier (unauthoriz ed) order foreclosed the availability of a stay

as to the two unex h austed claims in the petition. B ut any such belief was baseless. Even if he couldB A S T I D A S V

. C H A P P E L L 19

not establish g o od cause u nder Rhines

, B astidas could at least have soug ht a K

e l l y stay as to those claims. The mag istrate judg e’s determination that the new claim was ti me barred would have had no beari n g o n B a stidas’s elig ibility for a Kelly stay as to the c la i m s that were already p art of his petition.

The o r d e r s t h e mag istrate judg e did issue with reg ard to the unex h a

usted claims in the orig ina l petition were routine housekeeping matters. I t may very well be that B astidas filed his notice o f withdrawal because he ex pected the two c laims would be dismissed. B ut any impetus in that direction came from the state, which had filed a motion for leave to file a

m o t i o n to dismiss the petition as mix ed, not the mag istra t e judg e, who had not act e d o n t h e motion. The mag istrate judg e only permitted B astidas to g ive up the unex hausted

c l a i m s in his petition when he asked to do so. A mag istr a t e judg e’s order doing w hat a habeas pet itioner h as asked,
ag ainst the backdrop of a proposed motion to dismiss, does not equate to a dispositive order.

W e do not mean to sug g est that a mag istrate judg e’s order
g ranting a party ’s motion to dismiss h is own claims wi ll always be nondispositive. T here m a y w ell be situations in which a mag istrate judg e takes u nauthoriz ed steps that ultimately force a litig ant to m o v e t o dismiss some o f his claims. Cf. Hunt v. Pliler

, 38 4 F. 3 d 1118, 1124 (9th Cir. 2004) (holding that the mag is t r a t e judg e ex ceeded his authority by holding the habe a s p e t ition mix ed and issuing “an order, n ot authoriz e d by the statute, that required H unt to forfeit the claims he found unex hausted or face d ismissal o f the entire petition” ( e mph asis added)). W e hold only that
t h o s e circumstances are not present here. Under no compulsion from the mag istra te judg e, B astidas soug h t toB A S T I D A S V

. C H A P P E L L

20

dismiss two of his claims. The mag is trate judg e was within her authority

in g ranting that request. 8

I I I

.

W e vacate the judg ment of the district court and remand for proceeding s consistent with this opinion. 9

VACATED AND REMANDED.

8 Becau se w e rej ect B astid as’ s arg u m en t o n th is b asis, w e n e e d n o t ad d ress th e s tate’ s co n ten tio n s th at th e n o tice o f w i t h d raw al w as self

ex ecu tin g o r th at B astid as co n sen ted to th e m ag istrate j u d g e’ s au th o rity to d ism iss h is claim s.

W e also certif

ied th e q u estio n w

h eth er th e m ag istrate j u d g e’ s d en i al

as m o o t of th e state’ s m o tio n f o r l eav e t o fi l e a m o t io n to d ism iss, an d

o rd er d irectin g t

h e clerk to strik e th e pro p o sed m o tio n to d ism i ss , w ere d isp ositiv e. B astid as h as n o t arg u ed th at th ey w ere. W e co n clu d e th ose

o rd ers, each of w

h i ch w as w ith o u t p rej u d ice, w ere q u in t essen tial h o u sek eep in g m atters, an d th e m ag i strate j u d g e w as a u t h o r ized to issu e th em

.

9 W e d o n o t reach B astid as’ s u n certif ied i ssu es, as th ey ad d r e ss th e

m erits o f th e stay d en i a l a n d o f th e d istrict co u rt’ s d en ial o f relief on B astid as’ s claim

o f in ef f ectiv e assistan ce o f

co u n sel.