Algalon v. Dexter

347 F. App'x 341

Opinion

MEMORANDUM

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California state prisoner Enrique Algal-on 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(a). We review the dismissal of a mixed habeas petition de novo, and a district court’s grant or denial of a stay for abuse of discretion. Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008). We affirm.

The district court properly dismissed Algalon’s petition because it was a mixed petition containing both exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The district court did not abuse its discretion in denying Algal-on’s motion to stay the mixed petition because Algalon did not demonstrate good cause for his failure to exhaust his state remedies prior to filing his federal habeas petition. See Rhines v. Weber, 544 U.S. 269, 277, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) (requiring good cause for petitioner’s failure to exhaust); Wooten, 540 F.3d at 1024 (holding that petitioner’s belief that appellate counsel raised a claim before state court did not constitute good cause); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir.1986) (holding that illiterate pro se litigant’s reliance on another inmate’s assistance was not sufficient cause).

The district court was not required to inform Algalon of the three-step procedure set out in Kelly v. Small, 315 F.3d 1063 (9th Cir.2003), and Calderon v. United States District Court (Taylor), 134 F.3d 981 (9th Cir.1998). See Pliler v. Ford, 542 U.S. 225, 230-31, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.