NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUL 27 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BRIAN KERRY O’KEEFE, No. 15-15519
Petitioner-Appellant, D.C. No.
3:14-cv-00477-RCJ-VPC
v.
ROBERT LEGRAND, Warden and MEMORANDUM*
ATTORNEY GENERAL OF THE STATE
OF NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted July 6, 2016**
San Francisco, California
Before: SILVERMAN, and NGUYEN, Circuit Judges, and GARBIS,*** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.
Brian O’Keefe appeals the decision of the district court dismissing his
petition for a writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C.
§ 2253, and we vacate the district court’s decision and remand the case for further
proceedings.
O’Keefe filed the instant habeas petition challenging his Nevada state court
conviction of murder with a deadly weapon. The district court summarily
dismissed the petition, holding that O’Keefe’s state remedies were unexhausted.
We review the district court’s dismissal of O’Keefe’s petition de novo.
United States v. Avery, 719 F.3d 1080, 1082 (9th Cir. 2013). O’Keefe’s petition,
consisting of 25 handwritten pages and 275 pages of exhibits, contained at least
one claim that was clearly exhausted - his double jeopardy claim, which was
presented to the Nevada Supreme Court on direct appeal and expressly addressed
by that court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v.
Henry, 513 U.S. 364, 365 (1995)). While there are unexhausted claims within the
petition, for example, the claimed violation of his Sixth Amendment rights,
O’Keefe’s petition is a “mixed” petition because it contains both exhausted and
unexhausted claims. Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007).
Mixed petitions, though not subject to adjudication in federal court, cannot
be dismissed unless the petitioner has, “at a minimum, be[en] offered leave to
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amend the petition to delete any unexhausted claims and to proceed on the
exhausted claims.” Henderson v. Johnson, 710 F.3d 872, 873 (9th Cir. 2013).
The district court thus erred in dismissing O’Keefe’s petition without granting him
the opportunity to amend his petition in this way.
The district court’s decision is vacated and the case is remanded. The
pending motions for judicial notice are granted. O’Keefe’s petition for a writ of
mandamus is denied. Each party shall bear its own costs.
VACATED and REMANDED.
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