[00:00:17] Speaker 01:
Good morning, Your Honors, and may it please the court, Raj Shah for petition repellent, Anastasio Ramirez.

[00:00:23] Speaker 01:
I would like to reserve three minutes for rebuttal, and I will keep an eye on the clock.

[00:00:28] Speaker 01:
Your Honors, the magistrate below

[00:00:30] Speaker 01:
engaged in the exact legal error that this court identified in Hunt versus Plyler 20 years ago in 2004.

[00:00:37] Speaker 01:
Like in Hunt, the magistrate agreed with the primary contention of the state's motion to dismiss and ruled that two of Mr. Ramirez's habeas claims were unexhausted and therefore rendered his petition mixed for purposes of the Supreme Court's decision in Rose versus Lundy.

[00:00:54] Speaker 01:
As Hunt makes clear, the magistrate's determination violated the plain text of 28 USC subsection 636 B1A, because by resolving the exhaustion question, the magistrate effectively heard and determined the state's motion.

[00:01:08] Speaker 04:
How did the magistrate judge resolve

[00:01:12] Speaker 04:
the exhaustion question.

[00:01:14] Speaker 04:
All the magistrate judge did was, you know, as required under the prison reform litigation statute to take a look at the complaint to see if there was, you know, if it could go forward and identify unexhausted claims and then send out the order, the option order.

[00:01:37] Speaker 01:
Not exactly, Your Honor.

[00:01:38] Speaker 01:
That was the case in the related case in this matter, Mr. Atkins's case.

[00:01:41] Speaker 01:
In this case, what occurred was that the magistrate ordered briefing on, ordered a response to the petition, and the state raised the exhaustion issue and a motion to dismiss.

[00:01:51] Speaker 01:
And at that point, without waiting for an opposition from Mr. Ramirez, the magistrate undertook a six-page order, the first four pages of which definitively resolved the exhaustion question, and then ordered Mr. Ramirez to elect.

[00:02:04] Speaker 04:
But the magistrate just still gave options, correct?

[00:02:06] Speaker 01:
That's correct, Your Honor, but the opt- Four, or three, I can't remember.

[00:02:09] Speaker 01:
There were four options, Your Honor, but the options themselves were not the problem, and we know this from the court's decision in Hunt v. Plyler, where it's not the provision of the options in this case that- Let me ask you this, did the Magistrate Judge actually dismiss the three, the unexhausted claims?

[00:02:24] Speaker 04:
No, Your Honor, the Magistrate Judge did- How can you say that the Magistrate Judge resolved the exhaustion issue?

[00:02:29] Speaker 01:
And I suppose that was a poor choice of words on my part, Your Honor.

[00:02:32] Speaker 01:
The statute holds that magistrates cannot hear and determine a motion to dismiss.

[00:02:36] Speaker 01:
And that is precisely what the magistrate judge did here.

[00:02:39] Speaker 01:
And we know that from the court's decision in Hunt versus Plyler.

[00:02:42] Speaker 01:
I would quote the language of Hunt versus Plyler to me.

[00:02:46] Speaker 04:
Now the cases are coming back to me.

[00:02:48] Speaker 04:
But I thought that the magistrate judge basically put the motion to dismiss on hold.

[00:02:54] Speaker 01:
No, Your Honor, that is not what the magistrate judge did.

[00:02:56] Speaker 01:
The magistrate judge said.

[00:03:01] Speaker 01:
I suppose you could say that, Your Honor, but ultimately, that's not determinative.

[00:03:05] Speaker 01:
Under Hunt, what's determinative is that the magistrate judge determined the primary contention of the motion to dismiss.

[00:03:10] Speaker 01:
And if I might quote the court's language in Hunt on pages 1123 through 1124, in Hunt, what the court found problematic was, quote, that the magistrate judge's November 22nd memorandum and order determining respondents' motion to dismiss Hunt's first amended petition as mixed exceeded his statutory authority.

[00:03:28] Speaker 01:
In Hunt, as here, the magistrate never ruled on the motion to dismiss, the magistrate never issued a formal ruling, yet in Hunt, the court found that the magistrate's exhaustion determination violated the plain text of the statute.

[00:03:40] Speaker 01:
And Hunt is binding on this court, Your Honor.

[00:03:42] Speaker 01:
It's been published authority for the past 20 years.

[00:03:44] Speaker 01:
And what the magistrate judge did here is exactly what the court identified in Hunt versus Plymouth.

[00:03:49] Speaker 01:
And so we would.

[00:03:50] Speaker 03:
So I was going to ask, the order seemed to say either agree with me on this or file a response in which it gives options.

[00:04:00] Speaker 03:
And I noticed that none of the options asked for the possibility of petitioners saying, no, these are exhausted claims.

[00:04:08] Speaker 03:
But later on in the order it does seem to provide for a possibility of challenging that determination.

[00:04:15] Speaker 03:
Why doesn't that make this preliminary and not a final determination of exhaustion?

[00:04:19] Speaker 01:
It doesn't, Your Honor, for two reasons.

[00:04:21] Speaker 01:
The first reason is the language that the magistrate used when making the findings themselves.

[00:04:25] Speaker 01:
And I would refer the court to ER 33, 34, and 35.

[00:04:30] Speaker 01:
Those are the second, third, and fourth pages of the magistrate's order.

[00:04:33] Speaker 01:
And in those three pages, on no less than seven different occasions, the magistrate reached seven different conclusions about why the claims in this case were unexhausted.

[00:04:43] Speaker 01:
None of those conclusions were phrased tentatively.

[00:04:45] Speaker 01:
None of those conclusions were phrased ambiguously or equivocally.

[00:04:49] Speaker 01:
The conclusions were all definitively and finally phrased.

[00:04:52] Speaker 01:
They start with the magistrate's conclusion on ER 33 that, quote, the court further agrees with the respondent that grounds one and four of the instant petition were not fairly presented in the CSC petition and therefore are unexhausted.

[00:05:05] Speaker 03:
What if the court had said, these are my final determinations on exhaustion, but you have the right to contest it.

[00:05:12] Speaker 03:
And if you disagree, I will file a report in recommendation to the district court.

[00:05:17] Speaker 03:
Would that have been OK then?

[00:05:18] Speaker 01:
That would have made it, that arguably would have saved the order, I believe, Your Honor.

[00:05:23] Speaker 01:
Because there, the magistrate would have at least acknowledged that the district court would have some kind of authority to decide the question.

[00:05:29] Speaker 01:
But here, the magistrate judge made no reference to the district court's authority to resolve this question.

[00:05:34] Speaker 01:
The magistrate judge seemed to be signaling, and not just signaling, but rather finally stating that the claims were unexhausted in this case in these seven conclusions on pages 33, 34, and 35.

[00:05:44] Speaker 01:
And that's the problem that renders.

[00:05:46] Speaker 04:
You don't seriously contend that the magistrate judge can't identify an unexhausted claim, do you?

[00:05:57] Speaker 01:
No, Your Honor.

[00:05:58] Speaker 01:
That is not what we are contending.

[00:05:59] Speaker 04:
The magistrate judge can identify an unexhausted claim.

[00:06:03] Speaker 04:
What you're saying is that once the magistrate does that, they have to then make a report and recommendation to the district court laying out the options and asking the district court to file the options order?

[00:06:15] Speaker 01:
Well, I would argue that a report and recommendation would have been the easy way to avoid this problem.

[00:06:20] Speaker 01:
But another way to avoid this problem would have been to phrase the language of the findings so that they read more as tentative conclusions that would be subject to the later recommendation of a district judge, rather than as definite findings as the magistrate judge did in this case.

[00:06:33] Speaker 04:
So while the magistrate judge should have said it appears as though.

[00:06:39] Speaker 01:
Yes.

[00:06:39] Speaker 01:
And while that might seem like a superficial change in wording, Your Honor, it's the change in wording that separates this order

[00:06:45] Speaker 01:
from a report and recommendation and an actual finding.

[00:06:48] Speaker 01:
It might seem like a superficial change on the surface, but ultimately that's what separates it from being a legal order and an illegal order in this case.

[00:06:57] Speaker 00:
But on page 37 of the record, the magistrate judge says, if the petitioner contends that the petition is fully exhausted,

[00:07:05] Speaker 00:
petitioners should include in the response any additional argument and documents supporting petitioners' claim of exhaustion.

[00:07:13] Speaker 00:
Once the court receives petitioners' response, it will take further appropriate action.

[00:07:17] Speaker 00:
You don't think that fixes the problem you've identified?

[00:07:20] Speaker 01:
I don't believe it does, Your Honor, because the earlier statements by the Magistrate Judge were very final and definite and did not treat the issue as preliminary or tentative.

[00:07:28] Speaker 01:
And on top of that, the Magistrate Judge required Mr. Ramirez to elect between the four options.

[00:07:32] Speaker 01:
treating the exhaustion question as if it had been definitively resolved.

[00:07:36] Speaker 01:
And that's why I think that language doesn't fix it.

[00:07:39] Speaker 01:
Now I think what would have fixed it is if the magistrate judge had tweaked the language of her conclusions so that they read more as tentative conclusions that she appeared to glean from the record rather than definitive statements that appear more like findings than as recommendations that a district judge would eventually have to dispose of.

[00:07:56] Speaker 01:
And that's what makes this case like Hunt v. Plyler, Your Honor.

[00:07:59] Speaker 01:
Because in Hunt, that's exactly what this court found erroneous under the plain text of the statute.

[00:08:04] Speaker 01:
The magistrate judge in that case, while not formally ruling on the motion to dismiss, decided the exhaustion question and violated the plain text of the statute.

[00:08:14] Speaker 01:
And given that- Did you want to leave your remaining time for rebuttal?

[00:08:17] Speaker 01:
Yes, Your Honor.

[00:08:17] Speaker 01:
Thank you.

[00:08:18] Speaker 01:
And given that, we would ask the court vacate and remand, as in Hunt.

[00:08:35] Speaker 02:
Good morning, Your Honors, and may it please the Court, Deputy Attorney General Jonathan Krauss on behalf of Respondent.

[00:08:41] Speaker 02:
Your Honor, Section 636B1A bars magistrate judges from determining certain pretrial motions, like a motion to involuntarily dismiss.

[00:08:51] Speaker 02:
The options order here, though, did not determine or resolve the motion to dismiss filed by Respondent, because it did not grant the motion dismissed, nor did it force Petitioner to dismiss any claim.

[00:09:01] Speaker 02:
Instead, it used, indeed, tentative language to tell Petitioner that as a, quote, preliminary matter, grounds one and four were unexhausted, and it gave Petitioner options for how to proceed, while telling him that the decision that he elected in response to the order would, quote, dictate how the exhaustion order will be resolved.

[00:09:19] Speaker 03:
Well, Mr. Krauss, how do you respond to counsel's argument that it was forcing petitioner into certain choices?

[00:09:26] Speaker 03:
Because the order says either agree with me or in a response, you can either choose to ask for a stay or dismiss.

[00:09:37] Speaker 03:
None of those options that were listed contemplate the petitioner challenging the exhaustion question itself.

[00:09:46] Speaker 02:
Your Honor, what I would say to that is that the order was non-dispositive because it did indeed give Petitioner real voluntary choices that he could make for what to do in response to the options order.

[00:09:56] Speaker 02:
Included among those were options that were not present in Hunt, and I can get to Hunt in more detail, but this is really what distinguishes Hunt from this case.

[00:10:04] Speaker 02:
And while there's several reasons, this is the main one, is that the order here gave Petitioner inherently non-dispositive options for how to proceed, namely to seek a stay under either Rines or Kelly.

[00:10:15] Speaker 02:
And the choice that petitioner elected, ultimately he elected, of course, to withdraw his claims.

[00:10:19] Speaker 02:
The choice was entirely his to make.

[00:10:21] Speaker 02:
At no point was this choice forced on him.

[00:10:24] Speaker 02:
At no point was he compelled.

[00:10:25] Speaker 02:
At no point was this an involuntary choice.

[00:10:28] Speaker 02:
I know petitioner alleges that he felt somehow pressured or that the magistrate had already ruled on the exhaustion issue.

[00:10:33] Speaker 02:
But as Your Honors noted, on page 37 of the excerpts, I think it's the second last page of the order, the magistrate says to him that no matter what option you choose, short of dismissing the whole thing,

[00:10:43] Speaker 02:
If you contend that the claims are, in fact, exhausted, you can show me, effectively.

[00:10:47] Speaker 02:
You can provide additional argument, additional documentation, to demonstrate to the magistrate judge that the claims are, in fact, exhausted.

[00:10:55] Speaker 04:
What happened to the motion to dismiss that had been filed by the state?

[00:10:59] Speaker 02:
What happened to the motion to dismiss?

[00:11:00] Speaker 02:
Well, after this, Your Honor, what happened was the petitioner filed a motion to voluntarily withdraw the two unexhausted claims, and the magistrate ultimately denied the motion to dismiss as moot.

[00:11:10] Speaker 02:
But that's, of course, not the order that's being challenged here.

[00:11:12] Speaker 02:
The order that's being challenged here is the preliminary options order.

[00:11:16] Speaker 02:
And I should note as well that an order denying a motion as moot isn't even determining the motion under the meaning of the statute, because it is not dealing with the substance of the motion.

[00:11:26] Speaker 04:
Well, with the fact that the motion was filed, did that add to the petitioners'

[00:11:36] Speaker 04:
that it was necessary for him to take action?

[00:11:39] Speaker 02:
No, I don't think so, Your Honor.

[00:11:40] Speaker 02:
I think that, well, I think first of all that the mere fact that the motion was filed is not the important issue.

[00:11:45] Speaker 02:
The issue is whether the magistrate determined it.

[00:11:48] Speaker 02:
The second point that I'd make, which the magistrate did not do in this case, the second point is petitioner as a pro se litigant, his subjective understanding of what the motion might have meant or said is not really the important issue here.

[00:12:00] Speaker 02:
The important issue for this court is to evaluate the substantive nature of the order itself.

[00:12:04] Speaker 02:
looking at the text of the order to determine what did the order actually say.

[00:12:08] Speaker 02:
What were the options that were given to petitioner and where as here there were inherently non dispositive options that were entirely available to him.

[00:12:15] Speaker 02:
He didn't choose these options but they were there and had he done so he had the opportunity again if he so chose

[00:12:21] Speaker 02:
to seek a stay, have a stay granted, and preserve potentially all of his claims.

[00:12:24] Speaker 00:
If the magistrate judge had not used the language that I quoted that you've referred to, if you disagree with me on exhaustion, you can file papers saying so.

[00:12:34] Speaker 00:
If that language had not been there at all, would your position be different?

[00:12:37] Speaker 02:
No, I don't think so, Your Honor.

[00:12:38] Speaker 02:
I think the dispositive, for lack of a better word, issue in this case is whether the order disposes of or effectively disposes of any claims.

[00:12:46] Speaker 02:
And the fact that the magistrate judge's options order gave petitioner

[00:12:50] Speaker 02:
inherently non-dispositive options, which were real options, is what makes this case separate and apart in a very fundamental way from something like Hunt.

[00:12:57] Speaker 02:
I think it's important to highlight Hunt for a second.

[00:12:59] Speaker 02:
I know your honors are familiar with it.

[00:13:01] Speaker 02:
But in Hunt, the circumstances could not have been more different.

[00:13:04] Speaker 02:
In that case, the magistrate didn't even present to the petitioner the option of seeking a stay.

[00:13:09] Speaker 02:
The magistrate in that case, and this is what this court found in its decision, put petitioner in a lose-lose situation between a rock and a hard place, or whatever the metaphor is that you prefer,

[00:13:19] Speaker 02:
where he either only had two choices, either to abandon the unexhausted claims or to face dismissal of the entire petition effectively with prejudice because the statute of limitations had in that case expired.

[00:13:30] Speaker 03:
But what's interesting about this order is in two different places there's this bolded text, in the response petitioner must indicate which of the prior two options petitioner elects should the request for a stay ultimately be denied.

[00:13:45] Speaker 03:
And one of them is voluntary dismissal of the entire petition.

[00:13:48] Speaker 03:
and the other is proceeding on just exhausted claims, exactly the two forced options that Hunt made.

[00:13:59] Speaker 03:
Why doesn't this have an air of coercion that we've raised in Bastidas as a possibility of being improper?

[00:14:07] Speaker 02:
Your Honor, the reason is, again, because this order did have the options of the stay.

[00:14:11] Speaker 02:
Now, theoretically speaking, and this is hypothetical, he might have pursued a stay

[00:14:15] Speaker 02:
It might have been denied.

[00:14:16] Speaker 02:
Then, like Your Honor said, this falls more into the line of Mitchell and Bestitis in terms of the denial of a stay.

[00:14:20] Speaker 02:
We are not there yet.

[00:14:22] Speaker 02:
That didn't happen.

[00:14:23] Speaker 02:
We would concede, as the language in Mitchell and Bestitis says, that a denial of a stay order is generally, though not always, generally dispositive.

[00:14:29] Speaker 02:
And had he done that, and then you're right, Your Honor, he would have been facing that same position effectively, depending on the time remaining, that the petitioner in Hunt was placed in.

[00:14:37] Speaker 02:
But that's not the place he was in now.

[00:14:39] Speaker 02:
The place he was in on June 5th, 2018,

[00:14:42] Speaker 02:
was that all of his claims are still available to him.

[00:14:44] Speaker 02:
He was not being forced or compelled to dismiss any of them.

[00:14:48] Speaker 02:
Whatever might have happened six months, eight months, a year down the road, might have been a different issue for this court.

[00:14:53] Speaker 02:
It might have been an issue for the district judge at that point.

[00:14:56] Speaker 02:
But at this point, what this court is evaluating is whether this options order

[00:15:00] Speaker 02:
was dispositive.

[00:15:02] Speaker 03:
Does the magistrate judge have an obligation to convey to a petitioner that these sorts of questions will ultimately be resolved by the district court, that the magistrate can't themselves rule on a stay order or on a dismissal itself?

[00:15:17] Speaker 03:
Is that something that the magistrate should convey?

[00:15:19] Speaker 02:
No, I don't think that's a requirement.

[00:15:21] Speaker 02:
In fact, I think I said somewhere in my briefing that the magistrates don't have to give legal guidance to petitioners or explain things thoroughly.

[00:15:28] Speaker 02:
I think it's important to note that here

[00:15:29] Speaker 02:
The magistrate did give guidance, very clear guidance, I would think, for very straightforward bullet points, including telling him about Orion's day, telling him about a Kelly's day.

[00:15:40] Speaker 02:
Even though the magistrate didn't have to give him any guidance, the magistrate did, in fact, give guidance here.

[00:15:44] Speaker 02:
And I think that dispels any notion that this was some sort of compulsory order, that petitioner felt swayed, persuaded, pressured in some way to withdraw his claims.

[00:15:55] Speaker 02:
The choice was entirely his, and the fact that he made it

[00:15:59] Speaker 02:
should not be the ultimate determining factor here.

[00:16:01] Speaker 03:
So in your view, as long as the magistrate gives the option for a stay, that will necessarily save the order from being unduly coercive?

[00:16:11] Speaker 02:
I think in this case, absolutely.

[00:16:12] Speaker 02:
I think in most cases, absolutely.

[00:16:13] Speaker 02:
And I think that the key factor is, did the magistrate judge either dismiss or effectively dismiss any claims?

[00:16:18] Speaker 02:
And where the stay option is made available and set forth as it was here, then necessarily speaking, those claims were not disposed of or effectively disposed of.

[00:16:27] Speaker 02:
Again, in Hunt,

[00:16:28] Speaker 02:
There was no mention of a stay.

[00:16:29] Speaker 02:
And in Michelin-Bastida's different circumstances, the stay was being denied in that case.

[00:16:33] Speaker 02:
That's sort of a different case.

[00:16:35] Speaker 02:
But comparing this to Hunt, I think the fact that they provided him with these options of how to seek a stay does set it apart from a dispositive order and makes it inherently non-dispositive, because at this point in Petitioner's world in June of 2018, all of his claims were potentially salvageable.

[00:16:52] Speaker 04:
In Hunt, was there a motion to dismiss that the magistrate judge was confronting?

[00:16:56] Speaker 02:
There was, Your Honor.

[00:16:57] Speaker 02:
There was a motion to dismiss that there were 70 or so claims filed in that petition.

[00:17:02] Speaker 02:
The motion to dismiss argued that some number of them were unexhausted.

[00:17:06] Speaker 02:
And again, the response to that motion to dismiss was very different by the magistrate judge in that case than the magistrate judge's order in this case.

[00:17:14] Speaker 02:
a much more, I would say, draconian or compulsory order than what we see here.

[00:17:18] Speaker 03:
But the magistrate in Hunt did not rule on the motion to dismiss, but it almost effectively did so by saying you have to file an amended petition or voluntarily dismiss.

[00:17:26] Speaker 02:
That's exactly it.

[00:17:27] Speaker 02:
The magistrate in Hunt did not effectively or didn't actually rule on the motion, you're right, Your Honor, but it did effectively do so because, and this is our position here, it placed the petitioner in Hunt in this lose-lose circumstance where no matter what choice he elected of the two that he was given, at least one, if not all,

[00:17:43] Speaker 02:
of his claims would be dismissed.

[00:17:44] Speaker 02:
Whereas here, Petitioner had one, in fact, two options, Rines or Kelly, that he could, if he proceeded properly in the federal court,

[00:17:52] Speaker 02:
and then proceeded in state court, he could have preserved all of his claims.

[00:17:55] Speaker 02:
That is the key difference, ultimately, between this case and Hunt.

[00:17:59] Speaker 04:
Can I ask you one practice question?

[00:18:00] Speaker 02:
Sure.

[00:18:01] Speaker 04:
This order here, or these orders that we see here, they're pretty common in the central district, correct?

[00:18:05] Speaker 02:
They are, Your Honor.

[00:18:06] Speaker 04:
That's pretty much the way they operate.

[00:18:08] Speaker 02:
Yes, Your Honor.

[00:18:09] Speaker 02:
If I'm not mistaken.

[00:18:10] Speaker 02:
They vary from in wording here and there, but they are generally like this, yes.

[00:18:13] Speaker 04:
The four options.

[00:18:14] Speaker 04:
Correct.

[00:18:15] Speaker 04:
Do you happen to know if that's the practice elsewhere in the Ninth Circuit?

[00:18:19] Speaker 02:
Your honor, I don't know that.

[00:18:21] Speaker 02:
I think this is pretty common.

[00:18:22] Speaker 04:
Or elsewhere in California, since you're from there.

[00:18:25] Speaker 02:
I am, but I don't know, your honor.

[00:18:26] Speaker 02:
I can't speak with authority on what the motions are, what the options orders are in other districts other than the central.

[00:18:31] Speaker 02:
That's where I generally practice.

[00:18:32] Speaker 02:
But this is, as your honor said, the wording can vary here and there.

[00:18:35] Speaker 02:
It's not always exactly the same.

[00:18:37] Speaker 02:
The order in Atkins, the other case that was taken off calendar, is a little different, but functionally the same in that it's giving these live options, nondispositive options of seeking a stay.

[00:18:46] Speaker 04:
OK.

[00:18:47] Speaker 04:
Thank you.

[00:18:48] Speaker 02:
Thank you, your honor.

[00:18:59] Speaker 01:
A couple of quick points, Your Honors.

[00:19:01] Speaker 01:
Judge Lynn, you expressed some uncertainty about whether the magistrate judge's order here was a final determination on exhaustion because she provided Mr. Ramirez the right to contest that determination.

[00:19:11] Speaker 01:
But I would submit that simply because a party has the right to seek reconsideration of a judicial finding doesn't make that finding any less a judicial finding.

[00:19:20] Speaker 01:
And that's the problem we have here, Your Honor.

[00:19:22] Speaker 01:
Here, the magistrate judge made a judicial finding that Hunt versus Plyler says a magistrate is not authorized to make.

[00:19:29] Speaker 01:
Now, Mr. Krauss said a couple of things about Hunt v. Plyler, and I'd like to set the record straight on that case.

[00:19:34] Speaker 01:
In Hunt, the court ultimately, in the first two paragraphs of its opinion on pages 1123 through 1124, made very clear the reason why the magistrate judge's order in that case was unauthorized was because of the type of motion that it was hearing and determining.

[00:19:48] Speaker 01:
While the court in later paragraphs then went on to talk about the troubling effects of the magistrate's order in that case, it's very clear from the first two paragraphs that the type of motion by itself was what made the order in Hunt statutorily unauthorized under the plain language of section 636B1A.

[00:20:05] Speaker 03:
So if government does not file a motion to dismiss, we're in a different situation?

[00:20:11] Speaker 01:
That's correct, Your Honor.

[00:20:12] Speaker 01:
And in that situation, we would employ the functional approach that this Court has employed in cases like Bastidas, in Mitchell, and in Flam vs. Flam.

[00:20:19] Speaker 01:
And that is what Mr. Krasitz's argument was going to.

[00:20:21] Speaker 01:
But we are not in that territory right now, because here we're covered by the plain text of the statute, which bars magistrates from resolving, or rather hearing and determining motions to dismiss, as the magistrate judge did in this case.

[00:20:33] Speaker 04:
I just have one last question for you.

[00:20:36] Speaker 04:
So the order says the petition is mixed.

[00:20:41] Speaker 04:
And then, as I think his counsel pointed out, it says, as a preliminary matter, the court has concluded that grounds one and four are unexhausted for the reasons set forth above.

[00:20:52] Speaker 04:
There had been an explanation.

[00:20:55] Speaker 04:
So what you're saying is, what you're advocating is that, should have said, tentatively,

[00:21:02] Speaker 01:
Your Honor, I'm out of time.

[00:21:04] Speaker 01:
May I answer that question?

[00:21:05] Speaker 01:
Yeah.

[00:21:05] Speaker 01:
I mean, you're just quibbling with the language, aren't you?

[00:21:08] Speaker 01:
Well, two points, Your Honor.

[00:21:09] Speaker 01:
First, the use of the word preliminary there was more meant to signify that that was the first issue the magistrate judge was addressing before it moved on to the other issues in the order.

[00:21:17] Speaker 04:
Suppose the magistrate judge said, tentatively, it appears as though these claims are un-exhausted.

[00:21:24] Speaker 01:
That's correct, Your Honor.

[00:21:25] Speaker 01:
That would... That would satisfy you.

[00:21:27] Speaker 01:
That would satisfy the language of the statute, Your Honor.

[00:21:30] Speaker 01:
And while that might feel like a superficial difference, I would note that in this context, words are what make all the difference.

[00:21:36] Speaker 01:
Words are what make the difference for Article III purposes and for statutory purposes as well.

[00:21:40] Speaker 01:
And so for those reasons, we would ask this court vacate and remand as it did in Hunt versus Plymouth.

[00:21:44] Speaker 01:
Thank you, Your Honors.

[00:21:45] Speaker 03:
Thank you, Counsel, for your arguments.

[00:21:47] Speaker 03:
The matter will stand submitted.