FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


PABLO BASTIDAS,                          No. 12-55024
      Petitioner-Appellant,
                                        D.C. No.
            v.                  2:07-cv-08390-MMM-JC

KEVIN CHAPPELL, Warden,
      Respondent-Appellee.                OPINION


     Appeal from the United States District Court
        for the Central District of California
    Margaret M. Morrow, 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                    BASTIDAS V. CHAPPELL

                           SUMMARY*


                          Habeas Corpus

    Vacating the district court’s judgment dismissing a habeas
corpus petition and remanding, the panel held that the
petitioner’s motion to stay and abey his 28 U.S.C. § 2254
habeas petition in order to exhaust in state court a claim that
was not yet part of his federal habeas petition was dispositive
of that new unexhausted claim, such that the magistrate judge
was without authority to hear and determine the motion, but
rather was required to submit a report and recommendation
to the district court.

   The panel rejected the petitioner’s argument that the
magistrate judge lacked authority to grant his request to
remove two unexhausted claims from his petition.


                            COUNSEL

Mark Raymond Drozdowski, Deputy Federal Public
Defender, Michael David Weinstein (argued), Assistant
Federal Public Defender, and Raj Shah, Certified Law
Student, Federal Public Defender’s Office, Los Angeles,
California, for Petitioner-Appellant.

Kamala Harris, Attorney General, Lance Winters, Senior
Assistant Attorney General, Michael Johnsen, Supervising
Deputy Attorney General, and Kim Aarons (argued) and Ana

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   BASTIDAS V. CHAPPELL                      3

R. Duarte, Deputy Attorneys General, Office of the California
Attorney General, Los Angeles, California for Respondent-
Appellee.


                         OPINION

BERZON, Circuit Judge:

    Mitchell v. Valenzuela, filed today, holds that a motion to
stay and abey a 28 U.S.C. § 2254 habeas corpus petition to
exhaust claims in state court is generally (but not always)
dispositive of the unexhausted claims, and that a magistrate
judge therefore generally cannot hear and determine such a
motion. Mitchell v. Valenzuela, No. 12-55041, slip op. at 3
(9th Cir. July 1, 2015). In Mitchell, the petitioner sought a
stay in order to exhaust claims that were already part of his
petition. 

Here, the petitioner, Pablo Bastidas, moved
to stay and abey his petition while he exhausted a claim that
was not yet a part of his federal habeas petition. We hold that
Bastidas’s motion was likewise dispositive of that new
unexhausted claim, such that the magistrate judge was
without authority to “hear and determine” it, but rather was
required to submit a report and recommendation to the district
court. 28 U.S.C. § 636(b)(1)(A)–(B). We also reject
Bastidas’s argument that the magistrate judge lacked
authority to grant Bastidas’s request to remove two
unexhausted claims from his petition.

                              I.

    Pablo Bastidas was convicted at a jury trial in California
court of four counts of second-degree robbery, three counts
of possession of a firearm by a felon, and one count of assault
4                  BASTIDAS V. CHAPPELL

with a firearm. With various enhancements found true by the
jury, he was sentenced to a total of fifty-five years in prison.

    After the California courts denied relief on direct appeal
and state habeas review, Bastidas, represented by counsel,
filed the federal habeas petition at issue here. He conceded
in his petition that two of the four claims he asserted had not
been presented to the California Supreme Court. The case
was referred to a magistrate judge, who was authorized by the
district court “to consider preliminary matters and conduct all
further hearings as may be appropriate or necessary,” and
directed to then prepare and file a report and
recommendation.

    Bastidas’s attorney subsequently withdrew. Bastidas filed
a pro se motion to stay and abey the proceedings, noting that
he had filed a new petition in state court asserting that his
constitutional rights had been violated when the trial court
ordered his “una[d]judicated weapon enhancements” to run
consecutively to the principal charge. That claim was not
part of Bastidas’s existing federal habeas petition; rather, he
sought a stay to exhaust the claim so that he could amend it
into his petition. The state did not file a response to the
motion to stay and abey.

    The magistrate judge denied the motion to stay and abey.
She stated that, under Rhines v. Weber, 

(2005),
and Kelly v. Small, 

(9th Cir. 2003), she had the
authority to stay the petition and allow Bastidas to amend in
the new claim once it was exhausted. But the magistrate
judge denied the stay under Kelly, because, she held, the
claim was already time-barred. Equitable tolling was not
warranted, the magistrate judge held, and the new claim did
not relate back to the filing of the original petition. The
                   BASTIDAS V. CHAPPELL                      5

magistrate judge also decided that a stay under Rhines was
foreclosed, both as time barred and as lacking good cause.

    The state subsequently filed a motion for leave to file a
motion to dismiss, as well as a proposed motion to dismiss,
arguing that two of the four claims in Bastidas’s petition were
unexhausted. Shortly thereafter, before the magistrate judge
acted on the state’s motion, Bastidas filed a pro se “notice of
withdrawal,” conceding that two claims in the habeas petition
were not exhausted, noting that the court had already denied
his earlier motion for a stay as to the new claim, and asking
the court to dismiss the two unexhausted claims in his
petition. The magistrate judge granted Bastidas’s request,
dismissed the two claims, denied the state’s motion for leave
to file the motion to dismiss as moot, and directed the clerk
to strike the proposed motion to dismiss.

    After additional briefing, the magistrate judge issued a
report and recommendation as to the remaining claims. She
recounted that, “at petitioner’s request, the Court dismissed”
the two unexhausted claims, but did not mention Bastidas’s
prior motion for a stay, her own order denying a stay, or the
state’s proposed motion to dismiss. Her recommendation was
that the district court deny relief on the remaining claims and
dismiss the petition with prejudice.

    Bastidas objected to the report and recommendation, on
grounds unrelated to any argument regarding the magistrate
judge’s authority. After de novo review, the district judge
overruled the objections and adopted the report and
recommendation, dismissing the petition with prejudice.
Bastidas timely appealed.
6                  BASTIDAS V. CHAPPELL

    We granted a certificate of appealability, see 28 U.S.C.
§ 2253(c), as to “whether the magistrate judge exceeded her
authority by issuing, without the parties’ consent, orders
denying appellant’s motion for a stay and abeyance,
dismissing two of appellant’s claims, denying as moot
appellee’s application for leave to file a motion to dismiss,
and striking 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, 

, 740 (9th Cir. 1994).

    As Mitchell explains more fully, the authority of
magistrate judges is limited by 28 U.S.C. § 636, under which
a magistrate judge may hear and determine nondispositive
matters but not dispositive ones. Mitchell, slip op. at 6–8. As
to dispositive matters, the magistrate judge may go no further
than issuing a report and recommendation to the district
court, which then must undertake de novo review. 

that “a motion to stay and abey section 2254
proceedings” to exhaust claims in state court “is generally
(but not always) dispositive of the unexhausted claims.” 

    This case presents similar circumstances to those
considered in Mitchell, so we do not repeat its analysis here.
Several aspects of this case, however, warrant separate
attention. We consider them in turn.
                    BASTIDAS V. CHAPPELL                        7

                               A.

    Bastidas never objected to any of the magistrate judge’s
actions on the grounds that she lacked authority to hear and
decide dispositive matters. The state argues that, as a result,
Bastidas forfeited his right to appellate review of the
magistrate judge’s actions purportedly in excess of her
authority. We disagree.

     “[A]s a general matter, a litigant must raise all issues and
objections” before the trial court. Freytag v. C.I.R., 

, 879 (1991). Thus, in the ordinary course, a party who
does not complain of an issue in the district court forfeits his
right to review of that issue on appeal. In accord with this
general rule, we have held that “a party who fails to file
timely objections to a magistrate judge’s nondispositive order
with the district judge to whom the case is assigned forfeits
its right to appellate review of that order.” Simpson v. Lear
Astronics Corp., 

, 1174 (9th Cir. 1996)
(emphasis added). In addition, the Supreme Court has
authorized, but not required, the courts of appeals to adopt
rules conditioning the availability of appellate review of a
magistrate judge’s report and recommendation as to
dispositive matters on the filing of objections to the report
with the district court. Thomas v. Arn, 

, 155
(1985). Consistent with Thomas’s invitation, we have
articulated a set of rules governing appellate review of
matters in a magistrate judge’s report and recommendation to
which a party fails to object before the district court: While
“failure to object to a magistrate judge’s factual findings
waives the right to challenge those findings, [i]t is well settled
law in this circuit that failure to file objections . . . does not
[automatically] waive the right to appeal the district court’s
conclusions of law,” but is rather “a factor to be weighed in
8                      BASTIDAS V. CHAPPELL

considering the propriety of finding waiver of an issue on
appeal.” Miranda v. Anchondo, 

, 848 (9th Cir.
2012) (alterations in original) (internal quotation marks
omitted).1

    This case presents a different issue from those covered by
our forfeiture precedents concerning magistrate judge rulings.
Bastidas did not fail to object to a magistrate judge’s order on
an avowedly nondispositive matter, as in Simpson, nor to a
magistrate judge’s report and recommendation on an
avowedly dispositive matter, as in Miranda. Here, rather, the
failure to object relates to the (implicit) determination that
particular matters were nondispositive rather than dispositive.
Simpson and Miranda do not speak to whether the failure to
object to that determination forfeits the right to appellate
review.

    We conclude that a finding of forfeiture—or, for that
matter, waiver—would be inappropriate under the
circumstances of this case. The issue here is different from
the merits of a magistrate judge ruling of either variety in an
important respect: it implicates the structural principles of
Article III. The line Congress drew between dispositive and
nondispositive matters was not a result of happenstance.
Rather, it reflects the very real concern that, at least absent
consent, delegating the final disposition of cases to magistrate

    1
   Given our flexible approach, our cases discussing the effects of failure
to object to a report and recommendation are perhaps best understood as
an application of the doctrine of forfeiture, not waiver. See United States
v. Perez, 

, 845 (9th Cir. 1997) (en banc) (distinguishing
waiver and forfeiture); see also Wellness Int’l Network, Ltd. v. Sharif,

, 1941 n.5 (2015) (noting the Seventh Circuit’s
clarification that its similar rule governing appellate review of Bankruptcy
Court authority rests on forfeiture, not waiver, doctrine).
                      BASTIDAS V. CHAPPELL                             9

judges would run afoul of the Constitution. See Pacemaker
Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 

, 542 (9th Cir. 1984) (en banc) (indicating that “[a]
mandatory provision for trial of an unrestricted class of civil
cases by a magistrate and not by Article III judges would
violate the constitutional rights of the litigants”); see also
Anderson v. Woodcreek Venture Ltd., 

, 914 (9th
Cir. 2003) (observing that section 636(c)’s “voluntary consent
requirement was designed to assuage constitutional concerns,
as Congress did not want to erode a litigant’s right to insist on
a trial before an Article III judge”). Thus, the question
whether a magistrate judge correctly determined the limits of
her authority likewise implicates Congress’s concern with
running afoul of Article III. Id.2

     “[T]he Supreme Court teaches that when a federal judge
or tribunal performs an act of consequence that Congress has
not authorized, reversal on appeal may be appropriate” even
in the absence of a proper objection. United States v. Harden,

, 890 (7th Cir. 2014) (citing Rivera v. Illinois,

, 161 (2009)). For example, in Nguyen v. United
States, 

(2003), the Supreme Court vacated our
court’s judgments affirming criminal convictions because the
panel that had heard the cases included an Article IV Judge
from the District for the Northern Mariana Islands, in
violation of the statutory authorization for judges to sit by
designation. 

83. In doing so, the Court rejected the
argument that the lack of an objection before us to the
composition of the panel foreclosed relief on appeal, noting
that it had previously “agreed to correct, at least on direct
review, violations of a statutory provision that embodies a

  2
    We express no view as to the Article III limits of magistrate judges’
authority.
10                 BASTIDAS V. CHAPPELL

strong policy concerning the proper administration of judicial
business even though the defect was not raised in a timely
manner.” 

(internal quotation marks omitted). As in
Nguyen, the importance of policing the proper designation of
judicial officers in Article III courts convinces us that review
is warranted despite Bastidas’s failure to object. Cf. 

–91.

    Citing Clark v. Poulton, 

, 1367 (10th Cir.
1992), the state argues that a magistrate judge’s lack of
authority to hear and determine certain matters does not affect
the district court’s subject-matter jurisdiction, and therefore
that Bastidas’s arguments are forfeited. See also Peretz v.
United States, 

, 937 (1991); United States v.
Judge, 

, 525 (9th Cir. 1991). But Nguyen did
not rely on a defect in the court’s subject-matter jurisdiction
to reach the merits despite the lack of an objection. Indeed,
“because the statutory violation [wa]s clear,” Nguyen
expressly declined to consider whether “the participation of
an Article IV judge on the panel violated structural
constitutional guarantees embodied in Article 

n.9. As Nguyen is a Supreme Court case decided after
Clark, binding upon us, the government’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 Peretz to the contrary. Peretz, in which the
defendant’s attorney “affirmatively welcomed” “picking [a]
jury before a magistrate,” expressly declined to reach the
question whether “the conduct of petitioner and his attorney
constitute[d] a waiver of the right to raise . . . on appeal” the
argument that a district judge must oversee jury 

, 927, 932, 940. Instead, Peretz rejected on
the merits the defendant’s arguments that the magistrate
                   BASTIDAS V. CHAPPELL                      11

judge’s role in jury selection violated the statute and Article
III. 

Peretz, therefore, simply does not speak
to the question in this case of forfeiture of the right to
appellate review.

    For the same reason, the Supreme Court’s recent decision
in Wellness International Network, Ltd. v. Sharif does not
resolve the forfeiture issue in this case.            Wellness
International held, likewise on the merits, that “Article III is
not violated when the parties knowingly and voluntarily
consent to adjudication by a bankruptcy 

. But the Court remanded the case for a determination
in the first instance both whether the parties did consent, and
also “whether, as Wellness contends, Sharif forfeited his . . .
argument below” regarding the limits of the Bankruptcy
Court’s authority. 

Because the Court did not
reach the forfeiture issue, Wellness International offers no
reason to doubt our conclusion.

     Even if we were to conclude that Bastidas forfeited any
argument regarding the magistrate judge’s authority by not
filing objections with the district court, that conclusion would
not foreclose review. Rather, when a party has failed to raise
an issue before the district court, we generally have
“discretion to make an exception” and consider the issue if,
among other circumstances, “‘the issue presented is purely
one of law and either does not depend on the factual record
developed below, or the pertinent record has been fully
developed.’” Ruiz v. Affinity Logistics Corp., 

,
1322 (9th Cir. 2012) (quoting Bolker v. C.I.R., 

,
1042 (9th Cir. 1985)). The issue in these cases—whether a
stay-and-abey motion is a dispositive matter—is a purely
legal one, see 

, and the record has been
fully developed. We thus have discretion to reach this issue
12                   BASTIDAS V. CHAPPELL

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

    Our conclusion in this regard is bolstered by the fact that,
unlike the situations considered in both Simpson and
Miranda, Bastidas never received any notice that the
magistrate judge was making the determination that the stay
motion was nondispositive, nor any other clear guidance as to
how he might seek any sort of review of that determination
before the district court. Parties are given notice of their right
to seek review of magistrate judge rulings on nondispositive
issues, see Fed. R. Civ. P. 72(a); 

, as
well as review of dispositive ones, see Fed. R. Civ. P. 72(b);
28 U.S.C. § 636(b)(1); Rule 8(b), Federal Rules Governing
§ 2254 Cases (2015).3 But neither Rule 72, nor section 636,



  3
    Indeed, reports and recommendations are typically accompanied by
detailed warnings, and the magistrate judge provided such warnings with
her eventual report and recommendation in this case:

        You are hereby notified that the Magistrate Judge’s
        report and recommendation and a proposed order and
        judgment have been filed on October 26, 2011, copies
        of which are attached.

        Any party having objections to the report and
        recommendation and the proposed order and judgment
        shall, not later than November 15, 2011, file and serve
        a written statement of objections with points and
        authorities in support thereof before the Honorable
        Jacqueline Chooljian, United States Magistrate Judge.
        A party may respond to another party’s objections
        within 14 days after being served with a copy. A party
        who does not intend to so respond may expedite matters
        by filing a notice so indicating prior to the 14-day
        response deadline.
                     BASTIDAS V. CHAPPELL                            13

nor any statement from the magistrate judge in this case, told
Bastidas what to do if he disagreed with the magistrate
judge’s determinations that her decisions were
nondispositive. The murkiness of the proper procedural route
to seek district court review of this issue, and lack of notice
of the right to such review, confirms our conclusion that
appellate review is warranted in this case despite Bastidas’s
failure to object before the district court.

    We recognize, however, that our holding in this regard
carries with it the danger of litigants strategically deciding not
to object to a magistrate judge’s determination that a matter
is nondispositive, only to raise the issue on appeal if the
district court rules against them on other matters. Cf.

. Such conduct would be contrary to
“the underlying purpose of the Federal Magistrates Act . . . to
improve the effective administration of justice.” United
States v. Reyna-Tapia, 

, 1122 (9th Cir. 2003)
(en banc).

    In our view, the solution to this problem is
straightforward: When a magistrate judge believes she is
issuing a nondispositive order, she may warn the litigants
that, if they disagree and think the matter dispositive, they
have the right to file an objection to that determination with
the district judge. Where litigants have been specifically


        Failure to so object within the time limit specified shall
        be deemed a consent to any proposed findings of fact.
        Upon receipt of objections, or upon lapse of the time
        for filing objections, the case will be submitted to the
        District Judge for disposition. Following entry of
        judgment and/or order, all motions or other matters in
        the case will be considered and determined by the
        District Judge.
14                    BASTIDAS V. CHAPPELL

warned of the right to object to a magistrate judge’s
determination that a matter is nondispositive and of the
potential consequences of failing to do so, the conclusion that
the issue was forfeited may be warranted.

    Here, however, as discussed above, no such warnings
were given to Bastidas. We hold that he did not forfeit his
argument on appeal that the magistrate judge acted in excess
of her authority.4

                                   B.

    Observing that, under our precedents, the question is
“whether the motion to stay and abey at issue . . . was
effectively dispositive of a claim or defense or of the ultimate
relief sought,” Mitchell holds that, in light of Rhines v.
Weber, 

(2005), “a motion to stay and abey
section 2254 proceedings” to exhaust claims “is generally
(but not always) dispositive of the unexhausted claims.”
Mitchell, slip op. at 13. As Mitchell explains, the interaction
of Rose v. Lundy, 

(1982), which requires
dismissal of a “mixed” petition that includes unexhausted
claims, and the one-year statute of limitations enacted as part
of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), means that, once a motion to stay and abey the
petition is denied, no matter what a petitioner chooses to do,
he will generally “lose the opportunity ever to present [his
unexhausted] claims to a federal habeas court.” 

  4
    Bastidas properly raised the issue of the magistrate judge’s authority
in his opening brief. This appeal, consequently, does not implicate our
general rule that “[i]ssues not raised in the opening brief usually are
deemed waived.” Balser v. Dep’t of Justice, Office of U.S. Tr., 

, 911 (9th Cir. 2003) (internal quotation marks omitted).
                      BASTIDAS V. CHAPPELL                            15

    This case differs from Mitchell in one important respect.
Bastidas, unlike Mitchell, sought a stay to exhaust a claim
that was not already part of his federal habeas petition.5 We
conclude, however, that Mitchell’s rule applies with equal
force in this case. As the state recognized at oral argument,
the stay denial meant that Bastidas would never be able to
assert the new claim in a federal habeas proceeding. The
denial of Bastidas’s stay request was, thus, as dispositive of
his new claim as the denial of Mitchell’s request was of his
existing claims.

    The state, arguing to the contrary, relies on language in
S.E.C. v. CMKM Diamonds, Inc., to suggest that “a motion to
stay litigation that ‘is not dispositive of either the case or any
claim or defense within it’ may properly be determined by a
magistrate judge.” 

, 1260 (9th Cir. 2013)
(quoting PowerShare, Inc. v. Syntel, Inc., 

, 13–14
(1st Cir. 2010)) (emphasis added). But neither CMKM
Diamonds, nor, for that matter, PowerShare, each of which
held that a motion to stay at issue in that case was
nondispositive, involved any potentially foreclosed claims not
already in the complaint, and neither said that a stay motion


  5
    Another difference between this case and Mitchell is that Mitchell
moved to stay and abey only under Rhines, while in this case the
magistrate judge interpreted Bastidas’s motion as seeking a stay under
Kelly v. Small, 

(9th Cir. 2003), overruled on other grounds
by Robbins v. Carey, 

, 1149 (9th Cir. 2007), as well as a
stay under Rhines. See Mitchell, slip op. at 12 n.4 (citing King v. Ryan,

, 1139 (9th Cir. 2009)). Mitchell’s reasoning applies to a
motion for a Kelly stay as well as a Rhines stay, because Kelly, like
Rhines, offers a mechanism to address “the difficulties posed by the
interaction of AEDPA’s statute of limitations and Lundy’s rule.” 

no opinion regarding the availability of either kind of stay under
the circumstances of this case.
16                 BASTIDAS V. CHAPPELL

that is dispositive of a claim not included in the already-filed
complaint is within a magistrate judge’s authority. So the
state’s reliance on the particular turn of phrase used in those
cases is a weak reed.

    Nor are we persuaded by the state’s argument that a
motion to stay for the purpose of exhausting claims not
already included in the petition, as in this case, is
nondispositive because it is analogous to a motion to amend
in a new claim. Contrary to the state’s contention that a
motion to amend is always nondispositive, we have never
decided whether the denial of a motion to amend can be,
under some circumstances, dispositive.

    U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff,

(9th Cir. 1985), superseded by statute on other
grounds as recognized in MHC Fin. Ltd. P’ship v. City of San
Rafael, 

, 1125 (9th Cir. 2013), concerned a
salvage dispute in which the plaintiffs sought to amend in an
additional claim and defendant after the statute of limitations
had run; a magistrate judge granted the motion. 

Without much explanation, we concluded the matter was
nondispositive. 

n.1.

    It should be no surprise that the magistrate judge’s
decision to grant a motion to amend is not generally
dispositive; whether the denial of a motion to amend is
dispositive is a different question entirely. Just as “it is of
course quite common for the finality of a decision to depend
on which way the decision goes,” Bullard v. Blue Hills Bank,

, 1694 (2015), so the dispositive nature of a
                       BASTIDAS V. CHAPPELL                             17

magistrate judge’s decision on a motion to amend can turn on
the outcome.6

    Here, Bastidas sought a stay in the hope of exhausting and
later amending into his petition a new claim against the same
respondent and for the same postconviction relief.7 Under
our caselaw, to determine whether a magistrate judge’s ruling
denying a motion is dispositive, we examine whether the
denial of the motion effectively disposes of a claim or
defense or precludes the ultimate relief sought. See CMKM

; see also Flam v. Flam, — F.3d
––, No. 12-17285, 

at *2 (9th Cir. June 8,
2015). We conclude that Bastidas’s motion to stay and abey


 6
   Bullard held that a bankruptcy court’s refusal to confirm a Chapter 13
plan is not an immediately appealable final order, even though
confirmation of such a plan would be, and “any asymmetry in this regard
simply reflects the fact that confirmation allows the bankruptcy to go
forward and alters the legal relationships among the parties, while denial
does not have such significant 

.
 7
    The state relies on Hall v. Norfolk S. Ry. Co., 

, 595 (7th
Cir. 2006), which held that a magistrate judge was authorized to deny a
motion to amend a new defendant into an existing suit after the statute of
limitations had run. Whether or not Hall’s holding in this regard was
correct, we find the state’s analogy to Hall attenuated, and thus
unpersuasive with regard to the issue before us. Hall considered a motion
to amend the complaint in a civil case to add a new defendant; here, by
contrast, there was no motion to amend, but rather a motion to stay
proceedings with the hope of a possible future amendment. Even that
potential future amendment would, unlike Hall, add a new claim to the
petition but no new party. A district court’s order foreclosing a new claim
against an existing defendant can amount to “a denial of the ultimate relief
sought” against that defendant under some circumstances, CMKM

, even if an order foreclosing the addition of
a new defendant is deemed categorically nondispositive of the pending
case.
18                BASTIDAS V. CHAPPELL

was dispositive of the new claim he sought to add to his
petition, and the magistrate judge therefore lacked authority
to deny it.

    Because we conclude that Mitchell covers this case, we
vacate the district court’s judgment and remand for further
proceedings. Mitchell, slip op. at 17. The court should
determine de novo whether a stay was warranted with regard
to the new claim at the time Bastidas made his motion, and
may consider the magistrate judge’s order as a report and
recommendation, along with any objections from the parties.

If a stay was warranted, the court should decide
“[t]he pertinent question”: “Would the case have progressed
differently [regarding that claim] had a stay been granted,
and, if so, how?” 

                             C.

    Bastidas’s other certified issue is whether the magistrate
judge’s order granting Bastidas’s “notice of withdrawal” and
dismissing the two unexhausted claims in his petition without
prejudice was a dispositive order. We hold that it was not.

    Bastidas never sought a stay to exhaust the two
unexhausted claims originally a part of his petition. Instead,
he withdrew those claims after the state sought to dismiss the
petition as mixed but before any ruling by the magistrate
judge as to whether it was.

    Bastidas did mention the earlier stay denial in his notice
of withdrawal, suggesting that he may have believed that the
magistrate judge’s earlier (unauthorized) order foreclosed the
availability of a stay as to the two unexhausted claims in the
petition. But any such belief was baseless. Even if he could
                   BASTIDAS V. CHAPPELL                     19

not establish good cause under Rhines, Bastidas could at least
have sought a Kelly stay as to those claims. The magistrate
judge’s determination that the new claim was time barred
would have had no bearing on Bastidas’s eligibility for a
Kelly stay as to the claims that were already part of his
petition.

    The orders the magistrate judge did issue with regard to
the unexhausted claims in the original petition were routine
housekeeping matters. It may very well be that Bastidas filed
his notice of withdrawal because he expected the two claims
would be dismissed. But any impetus in that direction came
from the state, which had filed a motion for leave to file a
motion to dismiss the petition as mixed, not the magistrate
judge, who had not acted on the motion. The magistrate
judge only permitted Bastidas to give up the unexhausted
claims in his petition when he asked to do so. A magistrate
judge’s order doing what a habeas petitioner has asked,
against the backdrop of a proposed motion to dismiss, does
not equate to a dispositive order.

    We do not mean to suggest that a magistrate judge’s order
granting a party’s motion to dismiss his own claims will
always be nondispositive. There may well be situations in
which a magistrate judge takes unauthorized steps that
ultimately force a litigant to move to dismiss some of his
claims. Cf. Hunt v. Pliler, 

, 1124 (9th Cir.
2004) (holding that the magistrate judge exceeded his
authority by holding the habeas petition mixed and issuing
“an order, not authorized by the statute, that required Hunt to
forfeit the claims he found unexhausted or face dismissal of
the entire petition” (emphasis added)). We hold only that
those circumstances are not present here. Under no
compulsion from the magistrate judge, Bastidas sought to
20                    BASTIDAS V. CHAPPELL

dismiss two of his claims. The magistrate judge was within
her authority in granting that request.8

                                   III.

    We vacate the judgment of the district court and remand
for proceedings consistent with this opinion.9

      VACATED AND REMANDED.




  8
    Because we reject Bastidas’s argument on this basis, we need not
address the state’s contentions that the notice of withdrawal was self-
executing or that Bastidas consented to the magistrate judge’s authority to
dismiss his claims.

    We also certified the question whether the magistrate judge’s denial
as moot of the state’s motion for leave to file a motion to dismiss, and
order directing the clerk to strike the proposed motion to dismiss, were
dispositive. Bastidas has not argued that they were. We conclude those
orders, each of which was without prejudice, were quintessential
housekeeping matters, and the magistrate judge was authorized to issue
them.
  9
    We do not reach Bastidas’s uncertified issues, as they address the
merits of the stay denial and of the district court’s denial of relief on
Bastidas’s claim of ineffective assistance of counsel.