Nall v. Farwell

139 F. App'x 819

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 14, 2005
• Docket: No. 02-17184
• Status: Published

Opinion

MEMORANDUM

**

Tyrone Nall appeals the district court’s denial of habeas petition challenging his Nevada convictions and sentences for five counts of robbery with the use of a deadly weapon. We have jurisdiction pursuant to 28 U.S.C. § 2253 and we affirm.

Nall argues that the district court erred in failing to allow Nall to stay his habeas petition in order to allow Nall to return to state court to exhaust the unexhausted claims. We review a district court’s grant or denial of a stay for an abuse of discretion. Rhines v. Weber, — U.S.-, 125 S.Ct. 1528, 1534-35, 161 L.Ed.2d 440 (2005). In Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir.), cert. denied, 538 U.S. 1042, 123 S.Ct. 2094, 155 L.Ed.2d 1077 (2003), we held that the district court must consider the stay and abeyance procedure as an alternative to dismissal of a mixed petition when “dismissal will render it unlikely or impossible for the petitioner to return to federal court within the one-year limitation period.”

Nall failed to establish that a stay would have been warranted under Rhines v. Weber, — U.S. -, 125 S.Ct. 1528, 1534-35, 161 L.Ed.2d 440 (2005). Furthermore, Nall’s argument that the district court failed to advise him of the right to a stay and abeyance is foreclosed by Pliler v. Ford, 542 U.S. 225, 124 S.Ct. 2441, 2445-47, 159 L.Ed.2d 338 (2004).

The district court advised Nall that his petition was mixed and gave petitioner the opportunity to exercise his options under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). In addition, the court offered petitioner an administrative closure procedure that was the equivalent of a stay and abeyance. Nall rejected that procedure and knowingly and voluntarily elected to abandon the unexhausted claims in order to proceed with the exhausted claims.

We also decline to expand the Certificate of Appealability because Nall has failed to make a “ ‘substantial showing of the denial of a constitutional right,’” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), quoting 28 U.S.C. § 2253(c), and has not demonstrated that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

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 Ninth Circuit Rule 36-3.