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NOT FOR PUBLICATION OCT 03 2016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
ROBERT W. ELLIOTT, No. 14-17291
Petitioner-Appellant, D.C. No. 3:11-cv-00041-MMD
v.
MEMORANDUM*
DWIGHT NEVEN, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted September 27, 2016**
Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.
Nevada state prisoner Robert W. Elliott 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
Rhoades v. Henry, 638 F.3d 1027, 1034 (9th Cir. 2010), and we vacate and
*
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).
remand.
Elliott 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 Elliott’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 Elliott is entitled to a stay
and for any further proceedings.
Elliott’s request for judicial notice of state court records is granted.
In light of our disposition of this appeal, we deny Elliott’s request to expand
the certificate of appealability. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d
1098, 1104-05 (9th Cir. 1999).
VACATED and REMANDED.
2 14-17291