IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

JEFFREY ROBERT SCHALZ,

No. 2:14-cv-00699-AC

Petitioner, 

OPINION AND ORDER

v. 

JERI TAYLOR, Superintendent,

Two Rivers Correctional Facility,

 Respondent. 

MOSMAN, J., 

On September 25, 2014 Magistrate Judge Acosta issued his Findings and 

Recommendation (“F&R”) [19] in the above-captioned case, finding that Petitioner Jeffrey 

Schalz’s Motion for Protective Petition and Order of Stay and Abeyance [4] should be denied, an 

order and judgment of dismissal without prejudice should be entered, and a certificate of 

appealability should be denied. Mr. Schalz objected [21] to the F&R, and the Defendant 

responded [22]. 

LEGAL STANDARD

The magistrate judge makes only recommendations to the court, to which any party may 

file written objections. I am not bound by the recommendations of the magistrate judge; instead,

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I retain responsibility for making the final determination. I am required to review de novo those 

portions of the report or any specified findings or recommendations within it to which an 

objection is made. 28 U.S.C. § 636(b)(1). However, I am not required to review, de novo or 

under any other standard, the factual or legal conclusions of the magistrate judge as to those 

portions of the F&R to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 

149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). While the level 

of scrutiny under which I am required to review the F&R depends on whether objections have 

been filed, in either case I am free to accept, reject, or modify any part of the F&R. 28 U.S.C. § 

636(b)(1).

DISCUSSION

Mr. Schalz moves for a protective petition that would hold his federal habeas claim in 

abeyance pending exhaustion of his state court remedies under Rhines v. Weber, 544 U.S. 269 

(2005) and Pace v. DiGuglielmo, 544 U.S. 408 (2005). Petitioner’s Motion [4]. This court has 

discretion to grant such a stay when presented with a “mixed” habeas petition; that is, a petition 

containing some exhausted claims and some claims that are not exhausted. Rhines, 544 U.S. at 

275. 

Mr. Schalz seems to concede that his habeas petition contains only unexhausted claims 

for relief. Petitioner’s Reply [18] at 5. He argues Pace gives this court the discretion to stay 

both mixed and “unmixed” petitions such as his. Petitioner’s Objections to Findings and 

Recommendation [21] at 2. He relies on the Pace Court’s statement that “[a] petitioner’s 

reasonable confusion about whether a state filing would be timely will ordinarily constitute 

‘good cause’ for him to file in federal court.” Pace, 544 U.S. at 416. Thus in his view, 

reasonable confusion as to the timeliness of his state court filing is all that is required for the 

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federal court to grant him a protective petition; he need not present both exhausted and 

unexhausted claims. Plaintiff’s Objection [21] at 2.

Even if Mr. Schalz is correct, the Ninth Circuit cabined the district court’s discretion to 

staying only mixed petitions in Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“Once 

a district court determines that a habeas petition contains only unexhausted claims, it need not 

inquire further as to the petitioner’s intentions. Instead it may simply dismiss the habeas petition 

for failure to exhaust.”); F&R at 5. See also Lopez v. Schwarzenneger, 2010 WL 2880145, at *4 

(E.D. Cal. July 21, 2010), citing Rasberry, 448 F.3d at 1154; Brown v. Dexter, 2008 WL 

4384181, at *4 (W.D. Cal. Aug. 21, 2008). When presented with a habeas petition containing only 

unexhausted claims, the district court must dismiss it. Rasberry, 448 F.3d at 1154, citing Jiminez v. 

Rice, 276 F.3d 478, 481 (9th Cir. 2001) (“Once [the defendant] moved for dismissal, the district court 

was obliged to dismiss it immediately, as the petition contained no exhausted claims.”) (internal 

citation omitted). Under Rasberry, this court lacks discretion to grant the stay Mr. Schalz requests 

for his wholly unexhausted claims, and his motion must be denied. 

CONCLUSION

Upon review, I agree with Judge Acosta’s recommendations and ADOPT the F&R as my 

own opinion. 

IT IS SO ORDERED.

DATED this 7th day of November, 2014. 

/s/ Michael W. Mosman____ 

MICHAEL W. MOSMAN

United States District Judge

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