FILED
NOT FOR PUBLICATION SEP 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY CALVIN SMITH, No. 14-15296
Petitioner - Appellant, D.C. No. CV 04-3436 JSW
v.
MEMORANDUM*
KEVIN CHAPPELL, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted September 9, 2014**
San Francisco, California
Before: BEA, IKUTA, and HURWITZ, Circuit Judges.
Gregory Calvin Smith appeals the denial of his motion to stay federal habeas
proceedings in the district court while he returns to state court to exhaust 18 of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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60 claims raised in his second amended federal habeas petition. We lack appellate
jurisdiction over this interlocutory appeal. District court orders denying motions to
stay federal habeas proceedings to allow the exhaustion of state remedies are
reviewable on appeal after the district court enters a final judgment. See, e.g.,
Blake v. Baker, 745 F.3d 977, 979–80, 983–84 (9th Cir. 2014); Wooten v.
Kirkland, 540 F.3d 1019, 1022–24 (9th Cir. 2008); Olvera v. Giurbino, 371 F.3d
569, 572–74 (9th Cir. 2004); cf. Thompson v. Frank, 599 F.3d 1088, 1090 (9th Cir.
2010) (per curiam); Stanley v. Chappell, No. 13-15987, 2014 WL 3930452, at
*2–4 (9th Cir. Aug. 13, 2014) (holding an order granting a motion to stay is not an
appealable final order). Therefore, the district court’s order here fails the third
requirement of the collateral order doctrine, that the order be “effectively
unreviewable on appeal from a final judgment,” Coopers & Lybrand v. Livesay,
437 U.S. 463, 468 (1978). The district court’s decision to adjudicate Smith’s
exhausted claims does not change this conclusion. If we determine on appeal of
final judgment that the district court erred in denying the stay, we can remand with
instructions to stay Smith’s unexhausted claims until he has exhausted his state
remedies. See, e.g., Olvera, 371 F.3d at 573–74. Because the district court could
then consider any new evidence presented by Smith to the state court, Smith’s
argument that Cullen v. Pinholster, 131 S. Ct. 1388 (2011) affects our analysis is
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meritless.
DISMISSED.
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