Cannon v. California

164 F. App'x 617

Opinion

MEMORANDUM

***

Tyrrall Cannon appeals the district court’s dismissal without prejudice of his 28 U.S.C. § 2254 habeas petition. This court granted a certificate of appealability as to only one issue: whether the district court properly dismissed Cannon’s petition as unexhausted because Cannon had a petition for writ of habeas corpus pending in the California Supreme Court.¹ In dismissing Cannon’s habeas petition, the district court, citing Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), noted that it was required to dismiss mixed petitions. Since the district court’s ruling, the Supreme Court has decided Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), in which it held that district courts have the discretion to stay and hold in abeyance, rather than dismiss, a mixed habeas petition in “limited circumstances” where the petitioner establishes “good cause for [his] failure to exhaust his claims first in state court.” Id. at 1535. Accordingly, we vacate the district court’s dismissal and remand the habeas petition for reconsideration in light of Rhines v. Weber. See Jackson v. Roe, 425 F.3d 654, 655 (9th Cir.2005). If the court concludes that Cannon’s claims have “since been exhausted, there may no longer be a need to stay the proceedings. Instead the district court could consider the [claims] ... on the merits.” Id. at 662.²

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

1

. Cannon has filed numerous habeas petitions in both state and federal court. As of the time he filed the instant petition, the California Supreme Court had already rejected, on direct review, Cannon’s challenge to his conviction, case # S126599, and had a habeas petition pending before it, case #S126486. http://appellatecases.courtinfo.ca.gov/ (last visited December 20, 2005).

2

. Because we are vacating and remanding the district court’s dismissal, we express no opinion as to Cannon’s additional claim that his incompetence excuses the exhaustion requirement.