Keith Mitchell v. Anthony Hedgpeth , 791 F.3d 1166 ( 2015 )


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  •                FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    KEITH ANDREW MITCHELL,                    No. 12-55041
    Petitioner-Appellant,
    D.C. No.
    v.                        2:08-cv-00562-
    RGK-FFM
    ELVIN VALENZUELA, Warden,
    Respondent-Appellee.            OPINION
    Appeal from the United States District Court
    for the Central District of California
    R. Gary Klausner, 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                  MITCHELL V. VALENZUELA
    SUMMARY*
    Habeas Corpus
    Vacating the district court’s judgment dismissing a habeas
    corpus petition and remanding, the panel held that a motion
    to stay and abey a 28 U.S.C. § 2254 habeas petition to permit
    exhaustion of some of the petitioner’s claims in state court is
    generally (but not always) dispositive as to the unexhausted
    claims, and that a magistrate judge therefore generally cannot
    hear and determine such a motion, but rather must submit a
    report and recommendation to the district court.
    The panel held that the magistrate judge’s order in this
    case was effectively dispositive of the unexhausted claims
    and, therefore, beyond his authority.
    COUNSEL
    Sean Kennedy, Federal Public Defender, Michael David
    Weinstein (argued), Assistant Federal Public Defender, and
    Mark Raymond Drozdowski, Deputy Federal Public
    Defender, Federal Public Defender’s Office, Los Angeles,
    California for Petitioner-Appellant.
    Kamala Harris, Attorney General, Dane Gillette, Chief
    Assistant Attorney General, Lance Winters, Senior Assistant
    Attorney General, Michael Johnsen, Supervising Deputy
    Attorney General, Kim Aarons (argued) and Ana Duarte,
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    MITCHELL V. VALENZUELA                      3
    Deputy Attorneys General, Office of the California Attorney
    General, Los Angeles, California for Respondent-Appellee.
    OPINION
    BERZON, Circuit Judge:
    A magistrate judge denied petitioner Keith Andrew
    Mitchell’s motion to stay and abey his 28 U.S.C. § 2254
    habeas corpus petition while he exhausted some of his claims
    in state court. We hold that, in the context of a section 2254
    habeas petition, this type of motion is generally (but not
    always) dispositive as to the unexhausted claims. When it is
    dispositive, a magistrate judge is without authority to “hear
    and determine” such a motion, but rather must submit a report
    and recommendation to the district court. 28 U.S.C.
    § 636(b)(1)(A)–(B).
    I.
    Keith Andrew Mitchell was convicted of first degree
    murder at a jury trial in California state court. He was
    sentenced to fifty years to life in prison. On direct appeal,
    Mitchell, represented by counsel, raised several claims
    challenging the trial court’s jury instructions. The California
    Court of Appeal and California Supreme Court denied relief.
    Proceeding pro se, Mitchell then filed his first federal
    habeas petition. The state moved to dismiss the petition for
    failure to exhaust some of the claims, and Mitchell
    voluntarily dismissed the petition without prejudice so he
    could exhaust his state remedies.
    4                MITCHELL V. VALENZUELA
    Still within the statute of limitations, 28 U.S.C.
    § 2244(d)(1), and proceeding pro se, Mitchell then filed a
    second federal habeas petition, at issue in this case, asserting
    five due process claims. Three of the claims corresponded to
    the arguments he had presented to the California courts on
    direct appeal. The other two claims, both relating to a gang
    sentencing enhancement, had been asserted in the first federal
    petition. The new petition was referred to a magistrate judge,
    authorized by the district court “to consider preliminary
    matters and conduct all further hearings as may be
    appropriate or necessary,” and thereafter to issue a report and
    recommendation to the judge.
    The state once again moved to dismiss the petition,
    arguing that the two gang claims were not exhausted. As a
    result, the state argued, the petition was “mixed,” and the
    only proper resolutions were either to strike the unexhausted
    claims or to dismiss the entire petition.
    Mitchell responded by filing a motion to stay the case to
    allow him to exhaust the two claims, citing Rhines v. Weber,
    
    544 U.S. 269
    (2005). He represented that he had already filed
    state habeas petitions regarding the two claims, and that he
    had reasonably relied on his appointed attorney in the state
    proceedings to raise all of his potential claims on direct
    appeal. The state opposed the motion, arguing that there was
    no evidence Mitchell actually had filed any state habeas
    petition.
    The magistrate judge issued an order addressing both the
    motion to dismiss and the motion to stay. Although Mitchell
    had not filed an opposition to the motion to dismiss, the
    magistrate judge concluded that Mitchell’s motion to stay
    “impliedly concede[d] that at least one of his claims is
    MITCHELL V. VALENZUELA                        5
    unexhausted.” The magistrate judge also reviewed the record
    and concluded that the two gang claims had not been raised
    in the state direct appeals and that Mitchell had offered no
    proof that the alleged state habeas petitions had been filed.
    As a result, the magistrate judge concluded, the motion to
    dismiss was “well taken.”
    As for the motion to stay, the magistrate judge noted that
    Rhines requires a showing of good cause for the failure to
    exhaust claims in state court. He found that a stay would be
    “inappropriate” in this case, as Mitchell had dismissed his
    prior petition “specifically to exhaust his state remedies with
    respect to the two unexhausted claims” also asserted in the
    current petition, yet “took no action to exhaust those claims.”
    The magistrate judge then returned to the motion to
    dismiss, noting that, as a mixed petition not eligible for a stay
    under Rhines, the petition was “subject to dismissal.” The
    magistrate judge granted Mitchell leave to amend his petition
    to remove the unexhausted claims and indicated that, if
    Mitchell declined to do so, the magistrate judge would “issue
    a recommendation that the Petition be dismissed without
    prejudice for failure to exhaust.”
    Mitchell did move to remove “all unexhausted claims”
    from his petition. The magistrate judge granted Mitchell’s
    motion and denied the motion to dismiss as moot.
    Subsequently, the magistrate judge issued a report and
    recommendation to the district judge regarding the pared-
    down petition. In discussing the case’s procedural history,
    the magistrate judge noted that he had previously denied
    Mitchell’s stay motion for lack of good cause, had granted
    Mitchell’s motion to dismiss his unexhausted claims, and had
    6                MITCHELL V. VALENZUELA
    denied the state’s motion to dismiss as moot. On the merits
    of the remaining three claims, the magistrate judge
    recommended that the court deny relief. Mitchell objected,
    also on the merits of the three exhausted claims.
    After de novo review, the district court adopted the report
    and recommendation and dismissed the petition with
    prejudice. The district court did not address the denial of the
    stay motion at all. Mitchell timely appealed.
    We granted a certificate of appealability, see 28 U.S.C.
    § 2253(c), as to “whether the magistrate judge exceeded his
    authority by issuing, without the parties’ consent, orders
    denying appellant’s motion for a stay and abeyance,
    dismissing two of appellant’s claims, and denying as moot
    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).
    “The power of federal magistrate judges is limited by
    28 U.S.C. § 636.” Estate of Conners by Meredith v.
    O’Connor, 
    6 F.3d 656
    , 658 (9th Cir. 1993) (citing Reynaga
    v. Cammisa, 
    971 F.2d 414
    , 416 (9th Cir. 1992)); see also
    Flam v. Flam, — F.3d ––, No. 12-17285, 
    2015 WL 3540771
    at *2 (9th Cir. June 8, 2015). Pursuant to section 636,
    magistrate judges may hear and determine nondispositive
    matters, but not dispositive matters, in § 2254 proceedings.
    Hunt v. Pliler, 
    384 F.3d 1118
    , 1123 (9th Cir. 2004).
    Dispositive matters are those listed in section 636(b)(1)(A),
    as well as “analogous” matters. See Flam, 
    2015 WL 3540771
                         MITCHELL V. VALENZUELA                           7
    at *2; United States v. Rivera-Guerrero, 
    377 F.3d 1064
    , 1067
    (9th Cir. 2004); accord PowerShare, Inc. v. Syntel, Inc., 
    597 F.3d 10
    , 13 (1st Cir. 2010); Vogel v. U.S. Office Prods. Co.,
    
    258 F.3d 509
    , 515 (6th Cir. 2001).1 “To determine whether
    a motion is dispositive, we have adopted a functional
    approach that looks to the effect of the motion, in order to
    determine whether it is properly characterized as dispositive
    or non-dispositive of a claim or defense of a party.” Flam,
    
    2015 WL 3540771
    at *2 (internal quotation marks and
    alteration omitted). As to any dispositive matter, the
    1
    28 U.S.C. § 636(b)(1) provides:
    Notwithstanding any provision of law to the contrary–
    (A) a judge may designate a magistrate judge to hear
    and determine any pretrial matter pending before the
    court, except a motion for injunctive relief, for
    judgment on the pleadings, for summary judgment, to
    dismiss or quash an indictment or information made by
    the defendant, to suppress evidence in a criminal case,
    to dismiss or to permit maintenance of a class action, to
    dismiss for failure to state a claim upon which relief
    can be granted, and to involuntarily dismiss an action.
    A judge of the court may reconsider any pretrial matter
    under this subparagraph (A) where it has been shown
    that the magistrate judge’s order is clearly erroneous or
    contrary to law.
    (B) a judge may also designate a magistrate judge to
    conduct hearings, including evidentiary hearings, and
    to submit to a judge of the court proposed findings of
    fact and recommendations for the disposition, by a
    judge of the court, of any motion excepted in
    subparagraph (A), of applications for posttrial relief
    made by individuals convicted of criminal offenses and
    of prisoner petitions challenging conditions of
    confinement.
    8                    MITCHELL V. VALENZUELA
    magistrate judge is authorized, absent consent, only to issue
    a report and recommendation to the district judge, who in turn
    must undertake de novo review.2
    Mitchell argues that the magistrate judge overstepped his
    authority by denying the motion to stay and abey his petition
    pending exhaustion.3 We agree.
    2
    The terms “dispositive” and “nondispositive” do not appear in section
    636. They do appear in Fed. R. Civ. P. 72, which implements section 636.
    The notes to Rule 72 provide that at least subsection (b) of the Rule does
    not apply to habeas cases, and one case of this court has so held. See
    Cavanaugh v. Kincheloe, 
    877 F.2d 1443
    , 1449 (9th Cir. 1989). Another
    Ninth Circuit opinion relies on Rule 72 in a habeas case. See 
    Hunt, 384 F.3d at 1123
    –25.
    For present purposes, it does not matter whether Rule 72 directly
    applies. The habeas rules provide for broad application of section 636.
    See Rule 10, Federal Rules Governing § 2254 Cases (2015). The
    “dispositive”/“nondispositive” terminology in Rule 72 reflects the
    statutory distinction drawn in section 636 between the two principal roles
    of magistrate judges. See Flam, 
    2015 WL 3540771
    at *2 (noting that
    “[t]he textual basis for the distinction between dispositive and
    non-dispositive motions is found in 28 U.S.C. § 636(b)(1)”). Before the
    current Rule 72 was promulgated, the Supreme Court, citing the legislative
    history of the Federal Magistrates Act, used the term “dispositive” in
    describing those motions a magistrate judge is precluded from hearing and
    determining under section 636. See United States v. Raddatz, 
    447 U.S. 667
    , 673–76 (1980); 
    id. at 693
    (Stewart, J., dissenting). Thus, the
    distinction derives from the statute and applies to habeas cases; Rule 72
    simply implements the distinction for ordinary civil cases.
    3
    The state argued for the first time at oral argument that Mitchell
    forfeited his right to appellate review of his contention that the magistrate
    judge acted beyond his authority by failing to object to the denial of the
    stay order before the district court. The state’s briefs do mention that
    Mitchell did not appeal the denial of the stay to the district court, but only
    to argue that section 636 was “complied with,” not to argue that the
    question whether the statute was complied with was forfeited. The state’s
    MITCHELL V. VALENZUELA                                9
    “[W]here the denial of a motion to stay is effectively a
    denial of the ultimate relief sought, such a motion is
    considered dispositive, and a magistrate judge lacks the
    authority to ‘determine’ the matter.” S.E.C. v. CMKM
    Diamonds, Inc., 
    729 F.3d 1248
    , 1260 (9th Cir. 2013) (citing
    
    Reynaga, 971 F.2d at 416
    –17). By contrast, a motion to stay
    is nondispositive where it “[does] not dispose of any claims
    or defenses and [does] not effectively deny . . . any ultimate
    relief sought.” 
    Id. CMKM Diamonds
    fell into the latter, nondispositive
    category.    In that case, a Securities and Exchange
    Commission civil enforcement action, one of the defendants
    moved to stay the civil proceedings until a related criminal
    case had concluded. 
    Id. at 1251,
    1254. A magistrate judge
    denied the motion, and we held the magistrate judge within
    his authority in doing so. 
    Id. at 1260.
    The defendant had
    “simply speculated that he might have stronger evidence to
    support his position in the civil proceedings if he was able to
    go through the criminal proceedings first.” 
    Id. Such speculation,
    we held, was insufficient to establish that the
    denial of a stay would either “dispose of any claims or
    defenses” or “effectively deny him any ultimate relief
    sought.” 
    Id. The magistrate
    judge was therefore empowered
    to hear and determine the matter. 
    Id. forfeiture argument
    is therefore waived. See Gallardo v. United States,
    
    755 F.3d 860
    , 865 (9th Cir. 2014); Clem v. Lomeli, 
    566 F.3d 1177
    , 1182
    (9th Cir. 2009). In any event, as the issue is one purely of law, and
    concerns the appropriate exercise of federal judicial authority, even if the
    issue were forfeited, we would exercise our discretion to decide the scope
    of the magistrate judge’s authority as to Rhines stays. See Nguyen v.
    United States, 
    539 U.S. 69
    , 77–81 (2003); Ruiz v. Affinity Logistics Corp.,
    
    667 F.3d 1318
    , 1322 (9th Cir. 2012).
    10               MITCHELL V. VALENZUELA
    In so holding, CMKM Diamonds cited the rule established
    by our prior decision in Reynaga. The prisoner plaintiff in
    Reynaga filed a pro se lawsuit under 42 U.S.C. § 1983,
    alleging that the judge, district attorneys, and public defender
    involved in his state criminal case had denied him a fair 
    trial. 971 F.2d at 415
    . The case was referred to a magistrate judge,
    who determined that the defendants were immune from
    money damages and that the injunction sought—namely early
    release from prison—could only be pursued through habeas
    corpus. 
    Id. The magistrate
    judge thus ordered the action
    stayed until the plaintiff exhausted his state remedies and
    directed the clerk of court to administratively close the file.
    
    Id. We concluded
    on appeal that it was “clear” that, absent
    consent, the magistrate judge’s stay order “was beyond his
    authority.” 
    Id. at 416.
    Among other things, we said in
    support of our conclusion, “[t]he Magistrate’s imposition of
    the stay effectively denied Reynaga’s request for an
    injunction,” and “the Magistrate’s order was in essence an
    involuntary dismissal of Reynaga’s action.” 
    Id. at 416–17.
    Both a motion for injunctive relief and a motion for
    involuntary dismissal are among the specifically enumerated
    dispositive matters listed in section 636(b)(1)(A). 
    Id. Taking CMKM
    Diamonds and Reynaga together, the
    dispositive question for us is whether the motion to stay and
    abey at issue here was effectively dispositive of a claim or
    defense or of the ultimate relief sought. See Flam, 
    2015 WL 3540771
    at *2. As Rhines v. Weber, 
    544 U.S. 269
    (2005),
    makes clear, the answer is “yes.” Indeed, at oral argument
    the state conceded that the stay denial in this case “was
    tantamount to a dismissal” of the unexhausted claims, and
    MITCHELL V. VALENZUELA                        11
    there was “no way” Mitchell would be able to return to
    federal court to assert those claims later.
    Under Rhines, a section 2254 habeas petitioner may seek
    to stay and abey his petition while he exhausts his claims in
    state court. This procedure addresses the difficulties posed by
    the interaction of Rose v. Lundy, 
    455 U.S. 509
    (1982), and the
    Antiterrorism and Effective Death Penalty Act of 1996
    (AEDPA).
    Lundy held that district courts were required to dismiss
    without prejudice “mixed” section 2254 habeas
    petitions—that is, those including both exhausted and
    unexhausted 
    claims. 455 U.S. at 510
    . As Rhines explained,
    Lundy held this “requirement of ‘total exhaustion’” before a
    petition may proceed was required by “the interests of comity
    and federalism.” 
    Rhines, 544 U.S. at 273
    –74. Fourteen years
    later, Congress enacted AEDPA, which imposed a one-year
    statute of limitations for the filing of a federal habeas petition.
    While that limitations period is tolled “during the pendency
    of a ‘properly filed application for State post-conviction or
    other collateral review,’ [28 U.S.C.] § 2244(d)(2), the filing
    of a petition for habeas corpus in federal court does not toll
    the statute of limitations.” 
    Id. at 274–75.
    Considering the implications of the enactment of AEDPA
    for the continued viability of the Lundy rule requiring
    dismissal of all mixed petitions, Rhines began from the
    recognition that “[i]f a petitioner files a timely but mixed
    petition in federal district court, and the district court
    dismisses it under Lundy after the limitations period has
    expired, this will likely mean the termination of any federal
    review.” 
    Id. at 275.
    Rhines therefore authorized a
    “‘stay-and-abeyance’ procedure,” under which the district
    12                  MITCHELL V. VALENZUELA
    court, “rather than dismiss the mixed petition,” may “stay the
    petition and hold it in abeyance while the petitioner returns to
    state court to exhaust his previously unexhausted claims.” 
    Id. Concerned that
    “[s]tay and abeyance, if employed too
    frequently, has the potential to undermine” AEDPA’s
    purposes of reducing delay and requiring petitioners to
    exhaust state remedies before coming to federal court, Rhines
    instructed that “the district court should stay, rather than
    dismiss, the mixed petition,” only “in limited circumstances,”
    namely when three conditions are met: “[(1)] the petitioner
    had good cause for his failure to exhaust, [(2)] his
    unexhausted claims are potentially meritorious, and [(3)]
    there is no indication that the petitioner engaged in
    intentionally dilatory litigation tactics.” 
    Id. at 277–78.4
    4
    Under this circuit’s caselaw, a petitioner who has not exhausted all his
    potential federal habeas claims has another mechanism available to him
    to avoid the difficulties posed by the interaction of AEDPA’s statute of
    limitations and Lundy’s rule—the three-step procedure outlined in 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). The Kelly
    procedure permits “(1) a petitioner to amend his petition to delete any
    unexhausted claims; (2) the court in its discretion to stay and hold in
    abeyance the amended, fully exhausted petition, providing the petitioner
    the opportunity to proceed to state court to exhaust the deleted claims; and
    (3) once the claims have been exhausted in state court, the petitioner to
    return to federal court and amend[] his federal petition to include the
    newly-exhausted claims.” King v. Ryan, 
    564 F.3d 1133
    , 1139 (9th Cir.
    2009). “[T]he Kelly procedure remains available after Rhines,” and,
    unlike Rhines, “its availability is not premised upon a showing of good
    cause.” 
    Id. at 1140.
    As we explained in King, from the perspective of the
    petitioner, the downside of the Kelly procedure is that there is no
    assurance that the claims added to the petition after exhaustion will be
    considered timely filed. 
    Id. at 1140–41.
    Thus, compared to the Rhines
    procedure, “Kelly is not only a more cumbersome procedure for
    petitioners, but also a riskier one.” 
    Id. at 1140.
                     MITCHELL V. VALENZUELA                      13
    In light of Rhines, we conclude that a motion to stay and
    abey section 2254 proceedings is generally (but not always)
    dispositive of the unexhausted claims. Rhines acknowledged
    “the gravity of th[e] problem” of the interaction of Lundy’s
    total exhaustion rule with AEDPA’s one-year statute of
    limitation, “and the difficulty it has posed for petitioners.”
    
    Rhines, 544 U.S. at 275
    . “[P]etitioners 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., because, absent
    a stay, they are presented with
    two choices, each of which will ordinarily result in precluding
    some or all of their claims: Either they may voluntary dismiss
    unexhausted claims, proceeding on only the exhausted ones,
    or they may decline to do so, leading to dismissal of the entire
    petition. Either kind of dismissal would be, in form, without
    prejudice. But, because the one-year statute of limitations is
    not tolled while the federal petition is pending, Duncan v.
    Walker, 
    533 U.S. 167
    , 181 (2001), and because state
    proceedings can be lengthy and unpredictable, in most cases
    either option will mean that a petitioner will be barred from
    federal review of some or all of his claims by the time he
    exhausts them. If a petitioner voluntarily dismisses his
    unexhausted claims, it is very likely that final state court
    exhaustion of unexhausted claims will come too late to allow
    the claims to be heard in federal court, whether because
    (1) the statute of limitations period will have run on the
    claims and they will not relate back to the filing of the
    petition because they do not “arise[] from the same core of
    operative facts as a claim contained in the original petition,”
    Ford v. Gonzalez, 
    683 F.3d 1230
    , 1237 n.3 (9th Cir. 2012)
    (internal quotation marks omitted); (2) the remaining federal
    habeas petition will have been decided by the time the state
    courts act on the new habeas claims, triggering the onerous
    requirements for filing a second or successive habeas petition,
    14                  MITCHELL V. VALENZUELA
    28 U.S.C. § 2244(b); or (3) both. Similarly, if a petitioner
    chooses to accept dismissal of the entire petition under Lundy,
    he will very likely be barred from reasserting any of his
    claims in federal court by AEDPA’s statute of limitations. In
    either event, the result is the same as to the unexhausted
    claims: The petitioner will lose the opportunity ever to
    present those claims to a federal habeas court.5 Thus, in this
    case, like Reynaga and unlike CMKM Diamonds, the
    magistrate judge’s order was effectively dispositive of the
    unexhausted claims and, therefore, beyond his authority.
    5
    It is, of course, possible that in some cases a petitioner could
    successfully return to federal court after he exhausts his claims, even
    without a stay. For example, a petitioner whose petition is dismissed
    under Lundy could have time remaining on the AEDPA statute of
    limitations; that period is tolled during the pendency of “a properly filed
    application for State post-conviction or other collateral review.”
    28 U.S.C. § 2244(d)(2) (emphasis added). Thus, he might exhaust his
    remaining claims and file a second habeas petition, all within the statute
    of limitations. But, because a petition may be deemed not “properly” filed
    after years of litigation, see, e.g., Evans v. Chavis, 
    546 U.S. 189
    , 200
    (2006), it is generally impossible for a petitioner to know in advance
    whether he will be successful in bringing his dismissed claims back to
    federal court. Exacerbating this uncertainty in the context of this case is
    “California’s unusual system of independent collateral review” in which
    “a prisoner seeks review of a lower court’s denial of relief by filing an
    original petition for habeas corpus in the reviewing court,” rather than an
    appeal, and a “petition is timely filed if it is filed within a ‘reasonable
    time,’” rather than within a set period of time. Banjo v. Ayers, 
    614 F.3d 964
    , 968 (9th Cir. 2010). Because of this ex ante danger that the petitioner
    will not be granted the benefit of statutory tolling for some unforeseen
    reason, the denial of a motion to stay and abey a habeas petition should be
    treated as presumptively dispositive of unexhausted claims.
    We do not, however, foreclose the possibility that the state could
    establish, in particular cases, that the denial of such a motion was not
    dispositive under the circumstances. The state has not made nor attempted
    any such showing here.
    MITCHELL V. VALENZUELA                     15
    Indeed, we have previously recognized, in similar but not
    identical circumstances, that the interaction of AEDPA’s
    statute of limitations and Lundy’s total-exhaustion rule
    constrains the authority of magistrate judges. Hunt v. Pliler
    considered a magistrate judge’s order holding a habeas
    petition mixed and warning that, unless the petitioner sought
    leave to file an amended petition without the unexhausted
    claims, the court would dismiss the petition in full under
    
    Lundy. 384 F.3d at 1120
    . The petitioner refused to do so
    and, after a “tortuous procedural hegira,” the district court
    ultimately dismissed the petition with prejudice. 
    Id. at 1120–23.
    We vacated the court’s judgment, citing, in part,
    the court’s and the magistrate judge’s “fail[ure] to comply
    with § 636 and Rule 72, depriving Hunt of the right to de
    novo review by the district court of the magistrate judge’s
    pivotal determination that the [petition] contained
    unexhausted claims.” 
    Id. at 1125.
    That determination was
    pivotal, we explained, because it “required Hunt to forfeit the
    claims [the magistrate judge] found unexhausted or face
    dismissal of the entire petition, effectively with prejudice
    because any newly filed petition would be barred by
    AEDPA’s one-year statute of limitations.” 
    Id. at 1124
    (citing
    28 U.S.C. § 2244(d)); see also 
    id. (observing that
    the
    magistrate judge’s order could “hardly be considered
    equivalent to a dismissal with leave to amend because [it]
    compelled Hunt to abandon claims he contended had been
    exhausted or face dismissal of his entire petition with
    prejudice”). We therefore held that the magistrate judge’s
    determination, purportedly on his own authority, that the
    petition was mixed “exceeded his statutory authority.” 
    Id. Hunt is
    different from this case in that the petitioner in
    Hunt did not seek a stay pending exhaustion in state court, 
    id. at 1125,
    and Mitchell did not affirmatively contest that his
    16               MITCHELL V. VALENZUELA
    petition was mixed. But Hunt held that the magistrate judge
    could not hear and determine the question whether the
    petition was mixed because the resolution of that issue would
    have dispositive effect as to the unexhausted claims: If the
    petition was mixed, Hunt recognized, the choices confronting
    the petitioner would be to either “abandon” his purportedly
    unexhausted claims or else face “dismissal of the entire
    petition, effectively with prejudice,” because of AEDPA’s
    statute of limitations. 
    Id. at 1124
    . The stay-and-abey motion
    at issue here was, as explained above, dispositive for the same
    reason. In the shadow of Lundy and AEDPA, the denial of a
    Rhines stay, like a determination that the petition is mixed,
    generally amounts to dismissal of the unexhausted claims
    with prejudice.
    Finally, Flam recently held that a motion to remand a
    removed case to state court is a dispositive matter under our
    “functional approach.” Flam, 
    2015 WL 3540771
    at *2–3.
    Flam agreed with several other circuits that “such a remand
    order is ‘dispositive insofar as proceedings in the federal
    court are concerned,’” because “such an order ‘preclusively
    determines the important point that there will not be a federal
    forum available to entertain a particular dispute.’” 
    Id. at *3
    (quoting In re U.S. Healthcare, 
    159 F.3d 142
    , 146 (3d Cir.
    1998)). Because remand orders “put litigants out of federal
    court,” Flam held, they are dispositive in the relevant sense.
    
    Id. Much the
    same is true in this context. The denial of a
    motion to stay and abey is “dispositive insofar as proceedings
    in the federal court are concerned,” because “such an order
    preclusively determines the important point that there will not
    be a federal forum available to entertain” the petitioner’s
    unexhausted claims. 
    Id. (internal quotation
    marks omitted).
    MITCHELL V. VALENZUELA                     17
    In sum, the magistrate judge in this case had no authority
    to hear and determine the motion to stay and abey habeas
    proceedings to permit exhaustion of claims. He was, instead,
    required to submit a report and recommendation to the district
    court on that matter, for de novo review.
    Because, “the procedure leading to [the] dismissal” of this
    habeas petition “failed to comply with § 636,” 
    Hunt, 384 F.3d at 1125
    , we vacate the district court’s judgment and remand
    for further proceedings, guided by the principle that “we
    cannot countenance a magistrate judge’s unauthorized”
    orders, Allen v. Meyer, 
    755 F.3d 866
    , 869 (9th Cir. 2014), nor
    the results flowing from such orders, cf. 
    Hunt, 384 F.3d at 1125
    .
    The magistrate judge should have issued a report and
    recommendation as to the motion to stay and abey. The
    district court should therefore undertake, on remand, de novo
    review as to whether such a stay was warranted at the time of
    the magistrate judge’s order. The district court may consider
    the magistrate judge’s order on the stay as a report and
    recommendation, in which case the court should afford the
    parties an opportunity to lodge objections.               See
    
    Rivera-Guerrero, 377 F.3d at 1071
    (remanding “for the
    district court to apply de novo review . . . “treat[ing] the
    magistrate judge’s ‘order’ as proposed findings and
    recommendations”). If the district court concludes that no
    stay was warranted, then the magistrate judge’s unauthorized
    action was harmless, and the district court may reimpose its
    previous order. See 
    id. If a
    stay was warranted, then the district court must
    determine what prejudice the petitioner suffered as a result.
    18                   MITCHELL V. VALENZUELA
    The pertinent question is: Would the case have progressed
    differently had a stay been granted, and, if so, how?
    The magistrate judge’s unauthorized denial of the motion
    to stay and abey proceedings led directly to Mitchell’s
    voluntary dismissal of two of his claims. The magistrate
    judge expressly linked the two issues in his order, noting that,
    because the petition was not eligible for a Rhines stay, unless
    Mitchell voluntarily dismissed his unexhausted claims, the
    magistrate judge would recommend that the state’s motion to
    dismiss be granted. Mitchell did so shortly thereafter. But
    for the magistrate judge’s unauthorized action, if a stay was
    warranted, the case would have been stayed while Mitchell
    sought to exhaust the two unexhausted claims. Thus, if a stay
    should have been granted, the unauthorized stay denial
    caused Mitchell to lose the opportunity for a merits review on
    habeas of those two claims. Consequently, if the district
    court determines that a stay was warranted at the time, it
    should either stay the case under Rhines, if those claims
    remain unexhausted, or, if now exhausted, proceed to
    consider those claims as if they had never been dismissed.6
    6
    With the petition not stayed and the claims dismissed, Mitchell could
    well have concluded that exhaustion would have been futile with regard
    to the viability of those claims in federal court. Indeed, it is quite likely
    that he recognized what the state conceded in oral argument: The denial
    of the stay motion was “tantamount to a dismissal” of the unexhausted
    claims with prejudice, as there was “no way” Mitchell would be able to
    return to federal court to assert them.
    MITCHELL V. VALENZUELA                             19
    We vacate the judgment of the district court and remand
    for proceedings consistent with this opinion.7
    VACATED AND REMANDED.
    7
    Because we remand on this basis, we do not decide the other aspects
    of the certified question. Nor do we reach Mitchell’s uncertified issues,
    as they address the merits of the stay denial and of the three claims
    addressed by the district court.