Gerardo Castillo v. Legrand

FILED
NOT FOR PUBLICATION OCT 03 2016

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERARDO CASTILLO, No. 14-16341

Petitioner-Appellant, D.C. No. 3:13-cv-00704-LRH

v. MEMORANDUM*

LEGRAND and NEVADA ATTORNEY
GENERAL,

Respondents-Appellees.

Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding

Submitted September 27, 2016**

Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.

Nevada state prisoner Gerardo Castillo appeals from the district court’s

judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction

under 28 U.S.C. § 2253. We review de novo a dismissal for failure to exhaust, see

*
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).
Rhoades v. Henry, 638 F.3d 1027, 1034 (9th Cir. 2010), and we vacate and

remand.

Castillo contends that the district court erred in dismissing his habeas

petition as unexhausted because it had discretion to stay the proceedings. After the

district court dismissed Castillo’s petition, this court held in Mena v. Long, 813

F.3d 907, 912 (9th Cir. 2016), that a “district court has the discretion to stay and

hold in abeyance fully unexhausted petitions under the circumstances set forth in

Rhines [v. Weber, 544 U.S. 269 (2005)].” We, therefore, vacate and remand for the

district court to determine in the first instance whether Castillo is entitled to a stay

and for any further proceedings.

Castillo’s request for judicial notice of state court records is granted.

VACATED and REMANDED.

2 14-16341