GREGORY SMITH V. KEVIN CHAPPELL, No. 14-15296 (9th Cir. 2014)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS SEP 15 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GREGORY CALVIN SMITH, No. 14-15296 Petitioner -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). -1- 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 -2- meritless. DISMISSED. -3-
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