Jefferson v. Budge
No. 03-16932 (8-16-05). The 9th holds that Rose by any other interpretation still smells as sweet when it comes to mixed petitions. In this case, the petitioner had a mixed petition in federal court containing exhausted and unexhausted state claims. The court dismissed without giving the petitioner the option to proceed with his exhausted claims. the petitioner went back o state court, exhausted the claims, only to go back to federal court and be thrown out for being time barred. The state argues that the recent Pliler decision by the Supremes, which holds that district courts are not required to give certain advisements (the stay-and-abeyance option) before dismissing a mixed petition. The Supremes did not abrogate Rose, and indeed, quoted from it. The petitioner must be given the option of proceeding, although not necessarily under Pliler given further advisements. This is especially important here, because Rose has thorns, and the petition, if dismissed, would already be outside the AEDPA time limits. The 9th also held that equitable tolling occurred and so Rose can be cultivated to allow him to refile in a timely manner.