Jennifer Henderson v. Deborah K. Johnson, Warden, 710 F.3d 872

Henderson was convicted of two murders in 2007; convictions final in 2009 after California appellate proceedings.
She filed a state habeas petition in January 2011, which was dismissed as untimely.
She filed a timely federal habeas petition in January 2011, containing exhausted and unexhausted claims (mixed petition).
The district court dismissed the federal petition sua sponte under Sherwood v. Tomkins, concluding abstention was required because state direct appeal was pending.
Henderson sought reconsideration, arguing Sherwood is outdated and requesting leave to amend or a stay under Rhines or Kelly.
The panel reversed the district court, holding leave to amend and consideration of stays were required, and that all claims are now exhausted in state court so the petition should proceed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred by dismissing the mixed petition without leave to amend	Henderson argues amendment should be allowed to delete unexhausted claims.	Johnson contends Sherwood bars adjudication while state challenges are pending and amendment is improper.	District court erred; leave to amend required.
Whether Sherwood v. Tomkins governs and forecloses amendment or stay	Sherwood is outdated and should not bar amendment or stay.	Sherwood remains controlling to prevent simultaneous state and federal adjudication.	Sherwood does not foreclose leave-to-amend or stays; error to rely on Sherwood to dismiss outright.
Whether the court should have offered stay under Rhines or Kelly for exhausted claims	Petitioner asked for stay of the entire petition or at least of exhausted claims.	No stay should be granted and dismissal was appropriate absent amendment.	District court should have addressed stay options before dismissal.
Whether all state-court–rejected claims render the federal petition exhausted and suitable to proceed	Parties agree California courts have addressed Henderson’s claims; petition should proceed on exhausted claims.	Unexhausted claims still exist pending state action at time of dismissal.	With agreement that state courts rejected all claims, the petition contains only exhausted claims and should proceed.

Sherwood v. Tomkins, 716 F.2d 632 (9th Cir. 1983) (district court may not adjudicate while direct state appeal is pending)
Rose v. Lundy, 455 U.S. 509 (U.S. 1982) (mixed petitions barred; must be dismissed or amended)
Rhines v. Weber, 544 U.S. 269 (U.S. 2005) (stay of entire petition; module for mixed petitions)
Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) (stay of exhausted claims; opportunity to amend)
Jefferson v. Budge, 419 F.3d 1013 (9th Cir. 2005) (requirement to offer leave to amend in mixed petitions)
Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000) (district courts must permit dismissal of unexhausted claims)
Jarvis v. Nelson, 440 F.2d 13 (9th Cir. 1971) (habeas petition should not be dismissed without leave to amend)