Gallimort v. McDaniel

171 F. App'x 158

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 15, 2006
• Docket: No. 04-16903
• Status: Published

Opinion

MEMORANDUM

**

Nevada state prisoner Jose Gallimort appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas corpus petition challenging his 1998 bench trial conviction for kidnaping with use of a deadly weapon and battery with use of a deadly weapon. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Gallimort contends that the district court should have offered him the opportunity to stay his mixed habeas petition so that he could return to state court to exhaust his unexhausted claims. We review for abuse of discretion the district court’s decision to grant or deny a “stay and abeyance” of a habeas petition. See Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528,1534-35,161 L.Ed.2d 440 (2005).

No abuse of discretion occurred here. After determining that Gallimort’s habeas petition was mixed, the district court gave him the opportunity to exercise his options under Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), and offered Gallimort an administrative closure procedure that was the equivalent of a stay and abeyance. Gallimort rejected that procedure and knowingly and voluntarily elected to abandon the unexhausted claims in order to proceed with the exhausted claims.

AFFIRMED.

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.