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Name: Anthony v. Cambra
Case #: 99-15458
Court: US Court of Appeals
District 9 Cir
Opinion Date: 12/15/2000
Subsequent History: None

The district court erred in dismissing, as an abuse of the writ process, the subsequent petition filed here as a “successive” writ. Anthony had filed a pro per habeas writ in federal court containing six claims, only one of which had been exhausted in state court. The district court dismissed it without prejudice. Anthony then filed a habeas petition containing only the exhausted claim, together with a motion to stay the petition pending the exhaustion of his unexhausted claims. After Anthony exhausted the other five claims, he sought to amend the petition to add the newly exhausted claims. The district court denied the motion. Thereafter, but before oral argument in the Court of Appeals, the United States Supreme Court decided Slack v. McDaniel (2000) — U.S. — , 120 S.Ct. 1595. Accordingly, the state conceded that the “abuse of the writ” doctrine could not survive Slack. A petition filed after a mixed petition has been dismissed under Rose v. Lundy (1982) 455 U.S. 509, and before the district court adjudicated any claims, is to be treated as “any other first petition” and is not a second or successive petition. The exhausted claim for breach of the immunity agreement was considered on the merits and habeas relief was denied.