Opinion
No. 14-56888
10-03-2016
JOSE GRIMALDI, Petitioner-Appellant, v. K. HOLLAND, Respondent-Appellee.
NOT FOR PUBLICATION
D.C. No. 2:14-cv-03729-JVS MEMORANDUM Appeal from the United States District Court for the Central District of California
James V. Selna, District Judge, Presiding Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
California state prisoner Jose Grimaldi 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 remand.
Grimaldi 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 Grimaldi'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 Grimaldi is entitled to a stay and for any further proceedings.
We express no opinion as to the merits of Grimaldi's claims, or whether the procedural requirements of 28 U.S.C. § 2244(d) are satisfied or Grimaldi is entitled to equitable tolling.
All pending motions are denied as moot.
VACATED and REMANDED.