Gregory Smith v. Kevin Chappell

584 F. App'x 790

Opinion

MEMORANDUM **

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 60 claims raised in his second amended federal habeas petition. We lack appellate ju risdiction 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, 764 F.3d 990, 992-95, 2014 WL 3930452, at *2-4 (9th Cir. Aug. 13, 2014) (holding an order granting a motion to stay is not an appeal-able 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, 98 S.Ct. 2454, 57 L.Ed.2d 351 (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 unex-hausted 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, — U.S.-, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) affects our analysis is meritless.

DISMISSED.

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