FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARTHUR ROBBINS, III, 

No. 05-17131 Petitioner-Appellant,

D.C. No.

v.  CV-04-06337-OWW

TOM L. CAREY,

OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Eastern District of California

Oliver W. Wanger, District Judge, Presiding

Argued and Submitted

November 17, 2006—San Francisco, California

Filed March 12, 2007

Before: J. Clifford Wallace and Sidney R. Thomas,

Circuit Judges, and David A. Ezra,* District Judge.

Opinion by Judge Thomas

*The Honorable David A. Ezra, United States District Judge for the

District of Hawaii, sitting by designation. 

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COUNSEL

David M. Porter (argued) and Daniel J. Broderick, Office of

the Federal Defender, Sacramento, California, for the

petitioner-appellant. 

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Jeanne R. Wolfe (argued) and Bill Lockyer, Robert R. Anderson, Mary Jo Graves, Stephen G. Herndon, and Mark A.

Johnson, Office of the Attorney General of the State of California, Sacramento, California, for the respondent-appellee. 

OPINION

THOMAS, Circuit Judge: 

In this appeal, we consider whether, in the absence of a

request from an unrepresented petitioner, a district court is

required to consider, sua sponte, the option of staying and

abeying a petition for a writ of habeas corpus when the petitioner has filed a “mixed” petition consisting of both

exhausted and unexhausted claims. We hold that such a

requirement would conflict with Pliler v. Ford, 542 U.S. 225

(2004), and Rhines v. Weber, 544 U.S. 269 (2005), and we

affirm the judgment of the district court. 

I

On October 13, 1999, in a California state court, Robbins

pled no contest to possession with intent to sell crack cocaine.

He had been arrested after a bag of cocaine had been found

on the passenger-side floorboard of the car he was driving.

Because Robbins had two prior convictions which the state

court declined to excise, the court sentenced him to prison for

25 years to life under California’s “three strikes” law. Robbins appealed, and his appointed appellate attorney filed a

“People v. Wende brief” that simply asked the court to conduct an independent review of the record, without raising any

specific issues. See People v. Wende, 600 P.2d 1071 (Cal.

1979). Dissatisfied with his appellate representation, Robbins

requested and was denied appointment of new counsel, but he

raised issues of his own in a letter brief. 

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After the state appellate court affirmed his conviction, Robbins filed a petition for review with the California Supreme

Court. The thrust of Robbins’ argument was that the arresting

officer did not have probable cause to pull over the car Robbins was driving. Robbins argued that the arresting officer

lied when he testified that he discovered Robbins had a suspended license prior to the stop; rather, the arresting officer

learned of the suspended license only after the stop and the

discovery of the cocaine. Under this latter scenario, Robbins

argued, there was no probable cause to stop the car and the

fruits of the search would be tainted. Robbins’ state court

petition also argued that his appellate counsel was ineffective

for failing to raise the Fourth Amendment defense and the

contradictory testimony of the arresting officer, and that the

appellate court’s review was objectively unreasonable. 

The California Supreme Court denied his petition for

review, after which Robbins filed his federal habeas petition

on September 30, 2004. His amended habeas petition, filed on

December 30, 2004, sought relief on four grounds: (1) trial

counsel was ineffective for failing to object to the officer’s

contradictory statements; (2) his conviction was obtained

through evidence that should have been excluded; (3) appellate counsel was ineffective for failing to appeal any issues,

such as trial counsel’s ineffectiveness or the unlawful search

and arrest; and (4) it was objectively unreasonable for the

state courts to summarily deny his arguments on appeal. The

Warden moved for dismissal, arguing that Robbins failed to

exhaust these claims in state court, and on July 12, 2005, the

magistrate judge issued a report recommending the dismissal

of Robbins’ habeas petition because the ineffective assistance

of trial counsel claim had not been exhausted in state court.

The magistrate judge also recommended that Robbins’ fourth

claim be dismissed because it failed to state a cognizable federal claim. 

The magistrate judge’s report stated that both parties had

thirty days in which to file objections to the report, and that

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otherwise the report would be submitted to the district court

for review. The magistrate judge gave Robbins the option of

withdrawing his unexhausted claims within thirty days to

allow him to proceed with the exhausted claims; the magistrate judge explained that if Robbins did not withdraw the

unexhausted claims, the entire “mixed” petition would be dismissed without prejudice to allow Robbins to seek exhaustion

before refiling his federal petition. The magistrate judge did

not mention that the one-year limitations period imposed by

the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2244(d), had by then expired five

months earlier, in February of 2005, and thus that if Robbins’

federal petition were dismissed, he would be unable to re-file

in federal court after exhausting his claims in state court. Nor

did the magistrate judge advise Robbins of the stay-andabeyance procedure at issue here. Following the issuance of

the report, Robbins did not file any objections and did not

request a stay and abeyance or a withdrawal of his unexhausted claims. As a result, the district court adopted in full

the magistrate judge’s report and dismissed Robbins’ habeas

petition. 

We have jurisdiction to review the district court’s denial of

a petition for habeas corpus pursuant to 28 U.S.C. § 2253(a).

We issued a certificate of appealability (“COA”) on Robbins’

claim that Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003),

required the district court to consider sua sponte the stay-andabeyance procedure. 28 U.S.C. § 2253(c). Our review is limited to that question. Id.

We review the district court’s dismissal of a mixed habeas

petition de novo. Olvera v. Giurbino, 371 F.3d 569, 572 (9th

Cir. 2004). We also review pure legal questions and mixed

questions of law and fact de novo when the state court has not

reached the merits of the question. Pirtle v. Morgan, 313 F.3d

1160, 1167 (9th Cir. 2002). 

2942 ROBBINS v. CAREY
II

As a threshold matter, we must determine whether Robbins

properly preserved his right to appeal the district court’s decision. The Warden argues that Robbins waived this right by

failing to file objections to the magistrate judge’s report

within the thirty days provided by the magistrate judge.

Indeed, Robbins filed no objections to the report at all, before

or after the thirty-day deadline. When no objections were

filed, the district court adopted the magistrate judge’s recommendation in full and dismissed Robbins’ habeas petition

because it contained unexhausted claims. Robbins then filed

a timely notice of appeal. 

[1] “The failure to object in the district court to a magistrate’s finding of fact waives a challenge to that finding.”

United States v. Torf, 357 F.3d 900, 910 (9th Cir. 2004) (as

amended) (citing Turner v. Duncan, 158 F.3d 449, 455 (9th

Cir. 1998) (as amended)). However, the failure to object to a

magistrate judge’s conclusions of law does not automatically

waive a challenge on appeal. Turner, 158 F.3d at 455.

Because determinations of law by the magistrate judge are

reviewed de novo by both the district court and this court,

“the failure to object would not, standing alone, ordinarily

constitute a waiver of the issue.” Martinez v. Ylst, 951 F.2d

1153, 1156 (9th Cir. 1991). The failure to object to a magistrate judge’s conclusion of law “is a factor to be weighed in

considering the propriety of finding waiver of an issue on

appeal.” Id. In Martinez, we held that when a party has failed

both to object to a magistrate judge’s legal findings and to

raise the issue in its opening appellate brief — raising the

issue in a reply brief instead — “waiver is appropriate unless

there are circumstances suggesting that it will work a substantial inequity.” Id. at 1157. 

[2] Robbins’ arguments on appeal implicate his failure to

object to the magistrate judge’s legal conclusions concerning

state court exhaustion and lack of a federal claim. He does not

ROBBINS v. CAREY 2943
challenge the magistrate judge’s factual findings. Unlike the

party in Martinez, Robbins did raise his arguments in his

opening brief to this court. Thus, he is entitled to the “ordinary” presumption that failure to object to the magistrate

judge’s report, “standing alone,” does not constitute waiver.

See id. at 1156. Moreover, we granted Robbins a COA on an

issue that was not and could not have been addressed in the

magistrate judge’s report or, indeed, by the district court,

because had Robbins been aware of the possibility of the stayand-abeyance procedure while his case was pending in the

district court, he would have requested it outright. The

essence of his appeal is that, acting pro se, he was not aware

of the stay-and-abeyance procedure and did not request it,

thus requiring the district court to consider it without prompting. Robbins’ failure to object to the magistrate judge’s report

is, therefore, irrelevant to the claim before us. 

III

We conclude that a district court is not required sua sponte

to consider whether it should stay and abey a mixed habeas

petition. “Mixed” petitions are those habeas petitions consisting of both exhausted and unexhausted claims. See Rose v.

Lundy, 455 U.S. 509, 510 (1982). The Supreme Court has

held that district courts generally1 must dismiss such mixed

petitions, “leaving the prisoner with the choice of returning to

state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to

the district court.” Id. This total exhaustion requirement presented significant difficulties once Congress enacted AEDPA

in 1996, imposing a one-year statute of limitations on the filing of habeas petitions in federal court. 28 U.S.C. § 2244(d).

1The Supreme Court recently recognized an exception to the dismissal

requirement, permitting district courts to stay mixed petitions in certain

circumstances while the petitioner exhausts his unexhausted claims.

Rhines, 544 U.S. at 278; Jackson v. Roe, 425 F.3d 654, 659-61 (9th Cir.

2005) (discussing the Rhines holding). 

2944 ROBBINS v. CAREY
See Rhines, 544 U.S. at 274-75. The AEDPA limitations

period is tolled while a prisoner seeks collateral review in a

state court, but not while the prisoner is in federal court. 28

U.S.C. § 2244(d)(2); Rhines, 544 U.S. at 274-75. 

The Supreme Court has recognized that the interplay

between Lundy and AEDPA means that “petitioners who

come to federal court with ‘mixed’ petitions run the risk of

forever losing their opportunity for any federal review of their

unexhausted claims.” Id. at 275. In other words, if a prisoner

files a timely, mixed petition and the district court makes a

Lundy ruling after the one-year limitations period has run, the

prisoner is precluded from filing a new federal habeas petition

after exhausting those unexhausted claims. 

In Calderon v. United States District Court (“Taylor”), we

approved one solution to that conundrum, a three-step stayand-abeyance procedure in which: (1) the prisoner amends his

mixed petition to remove the unexhausted claims; (2) the district court stays and holds in abeyance the amended and fully

exhausted petition; and (3) the prisoner re-amends his petition

to add the newly-exhausted claims after litigating them in

state court. 134 F.3d 981, 986 (9th Cir. 1998). Kelly v. Small

affirmed that procedure and held that district courts must consider it sua sponte regardless of whether the prisoner raises it,

specifying that the stay-and-abeyance procedure “is particularly appropriate when an outright dismissal will render it

unlikely or impossible for the petitioner to return to federal

court within the one-year limitation period.” 315 F.3d 1063,

1070 (9th Cir. 2003) (as amended); see also Smith v. Ratelle,

323 F.3d 813, 818 (9th Cir. 2003); Guillory v. Roe, 329 F.3d

1015, 1017 (9th Cir. 2003). 

[3] In Ford v. Hubbard, we held that, when faced with a

pro se habeas petitioner, “the district court was obligated to

inform him of his options with respect to his mixed habeas

petitions: to advise him that it would have the power to consider his stay motions only if he opted to proceed with his

ROBBINS v. CAREY 2945
exhausted claims and dismiss the unexhausted claims.” 330

F.3d 1086, 1099 (9th Cir. 2003) (as amended), rev’d sub nom.

Pliler v. Ford, 542 U.S. 225 (2004). We also held that the district court was obligated to inform the petitioner that

AEDPA’s statute of limitations period had run and that he

would be barred from seeking habeas relief in federal court if

he failed to amend his petitions or dismissed them in order to

exhaust the unexhausted claims. Id. at 1102. 

[4] The Supreme Court reversed those holdings in Pliler.

542 U.S. at 234. The Supreme Court specifically declined to

address “the propriety of [the Ninth Circuit’s] stay and abeyance procedure,” but held that “federal district judges are not

required to give pro se litigants these two warnings.” Id. at

231. Robbins interprets this language as taking issue only

with the giving of two warnings. We do not believe Pliler can

be read so narrowly. Pliler extends beyond the giving of two

warnings to pro se litigants because district courts “have no

obligation to act as counsel or paralegal to pro se litigants,”

id., and because “ ‘the Constitution [does not] require judges

to take over chores for a pro se defendant that would normally

be attended to by trained counsel as a matter of course,’ ” id.

(quoting McKaskle v. Wiggins, 465 U.S. 168, 183-84 (1984)).

The Supreme Court further expressed concern that requiring

district courts to advise pro se litigants “would undermine district judges’ role as impartial decisionmakers.” Id. Later in the

opinion, the Supreme Court explained that “nothing in Rose

[v. Lundy] . . . suggests that district judges give specific

advisements as to the availability and wisdom of the[ ]

options” faced by a petitioner with a mixed petition. Id. at

233. 

[5] Thus, although the Taylor stay-and-abeyance option

remains in place for district courts, Pliler makes it clear that

district courts are not required to consider sua sponte the stayand-abeyance procedure. Such a mandatory action by the trial

judge falls within the set of “chores” targeted by the Supreme

Court in Pliler. See also Brambles v. Duncan, 412 F.3d 1066,

2946 ROBBINS v. CAREY
1070-71 (9th Cir. 2005) (following Pliler, the district court

had no obligation to inform habeas petitioner that the stayand-abeyance procedure was available). Therefore, Pliler

effectively overruled any requirement to the contrary contained in Kelly v. Small and its progeny. 

Robbins argues that there is a distinction between Kelly’s

requirement that a court must “consider” the procedure and

Pliler’s holding that courts are not required to issue warnings

about the use of the procedure. However, there is no difference between “considering” a procedure and notifying a party

about the possibility of that procedure, because in both cases

the district court must sua sponte inform the party of the procedure, partly so that the petitioner may decide which option

to pursue. The district court cannot merely “consider” the

stay-and-abeyance option on its own; rather, it must inform

both parties of its possible use to enable them to provide the

information the court needs to exercise its discretion over

whether to stay and abey the petition. 

The Supreme Court’s decision in Rhines v. Weber, 544

U.S. 269 (2005), is not to the contrary and does not detract

from the holding of Pliler. There, the Supreme Court

addressed the propriety of staying a mixed petition while a

petitioner exhausts his unexhausted claims in state court.

Rhines, 544 U.S. at 271. The Court upheld the procedure but

found that it “should be available only in limited circumstances.” Id. at 277. Specifically, the Court said it was appropriate only when (1) good cause exists for petitioner’s failure

to exhaust; (2) petitioner’s unexhausted claims are not

“plainly meritless”; and (3) there is no indication that petitioner engaged in “abusive litigation tactics or intentional

delay.” Id. at 277-278. Thus, Rhines merely approved a version2

of the stay-and-abeyance procedure. Although, as Robbins

2See Jackson, 425 F.3d at 661, for a discussion of the differences

between the stay-and-abeyance procedure described in Rhines and that of

Kelly. 

ROBBINS v. CAREY 2947
argues, Rhines may have endorsed the procedure, there is no

indication that its endorsement was so hearty that it condoned

a requirement that district courts must consider the procedure

sua sponte. Such a requirement would be inconsistent with

Pliler, and there is no indication in Rhines that the Supreme

Court intended to revise Pliler, much less overrule it. 

IV

[6] In light of Pliler v. Ford, we conclude that the district

court was not required to consider, sua sponte, the stay-andabeyance procedure. To the extent that Kelley v. Small and its

progeny suggest otherwise, those cases are overruled.3 We

affirm the district court’s judgment dismissing Robbins’

mixed petition. We need not, and do not, reach any other issue

urged by the parties.4

AFFIRMED.

3Ordinarily, panels cannot overrule a circuit precedent; that power is

reserved to the circuit court sitting en banc. United States v. Washington,

872 F.2d 874, 880 (9th Cir. 1989) (as amended). As an exception to this

general rule, we have held that where an intervening higher authority has

issued an opinion that is “clearly irreconcilable” with our prior circuit precedent, a panel is free to act disregarding that precedent. Miller v. Gammie, 335 F.3d 889, 893, 900 (9th Cir. 2003) (en banc). 

4Because we conclude that the district court in this case was under no

obligation to consider the stay-and-abeyance procedure sua sponte, we do

not reach the Warden’s argument that Robbins did not meet the new standards laid out in Rhines for applying the procedure. We also do not

address whether the Rhines requirements apply to the specific type of stayand-abeyance procedure at issue in Kelly, see Jackson, 425 F.3d at 661,

and we do not alter the “strong preference” in favor of granting the Kelly

procedure, if requested by the petitioner, “when an outright dismissal will

render it unlikely or impossible for the petitioner to return to federal court

within the one-year limitation period,” Kelly, 315 F.3d at 1070. Nor do we

reach Robbins’ uncertified argument that all claims in his habeas petition

were exhausted and thus that his petition was not “mixed.” Finally, we

deny Robbins’ motion before this court to hold his habeas petition in abeyance while he seeks exhaustion in state court. Because we affirm the district court’s dismissal of his petition, this motion is now moot. 

2948 ROBBINS v. CAREY