MATTHEW MOLINA V. DAVE DAVEY, No. 14-15078 (9th Cir. 2016)

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FILED OCT 03 2016 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MATTHEW A. MOLINA, Petitioner-Appellant, No. 14-15078 D.C. No. 2:13-cv-01926-LKK v. MEMORANDUM* DAVE DAVEY, Warden, Respondent-Appellee. Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, District Judge, Presiding Submitted September 27, 2016** Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges. California state prisoner Matthew A. Molina appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction * 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). 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 remand. Molina 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 Molina’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 Molina is entitled to a stay and for any further proceedings. Molina’s unopposed request for judicial notice of state court records is granted. VACATED and REMANDED. 2 14-15078

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