Richard Romero v. Kelly Harrington

441 F. App'x 425

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 29, 2011
• Docket: 09-55170
• Status: Unpublished

Opinion

MEMORANDUM **

Richard Romero appeals the district court’s denial of his 28 U.S.C. § 2254 habe-as petition as untimely. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253, and we affirm.

I

The district court did not err in dismissing the previously unexhausted claims because “[t]he appropriate time to assess whether a prisoner has exhausted his state remedies is when the federal habeas petition is filed, not when it comes on for a hearing in the district court or court of appeals.” Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir.1999) (quoting Brown v. Maass, 11 F.3d 914, 915 (9th Cir.1993)). Romero had two ways to have his previously unexhausted claims heard: seek a stay pursuant to Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), or exhaust the claims in state court and then amend his federal petition, the Kelly v. Small, 315 F.3d 1063 (9th Cir.2003), procedure. He did not successfully pursue either.

II

The district court did not abuse its discretion in denying Romero’s Rhines motion to stay the proceedings. As the district court stated, the proffered reasons were “ordinary and routine” — limited access to the prison library and difficulties meeting the filing deadline — and do not constitute the “limited circumstances” under which a stay is appropriate. See Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir.2008) (quoting Rhines, 544 U.S. at 277, 125 S.Ct. 1528).

AFFIRMED.

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