Roberts v. Runnels

139 F. App'x 840

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2005
• Docket: No. 03-55973
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Junior Roberts appeals the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition, which challenged his conviction for kidnaping to commit robbery, robbery, and assault with a firearm. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Roberts contends that the district court erred, under Kelly v. Small, 315 F.3d 1063 (9th Cir.2003), by failing to consider the option of staying his exhausted claim while he returned to state court with an unexhausted claim. We need not reach this contention because it was not within the district court’s discretion to grant a stay and hold proceedings in abeyance. See Rhines v. Weber, — U.S. -, -, 125 S.Ct. 1528, 1535, 161 L.Ed.2d 440 (2005) (holding such procedure is only appropriate when petitioner shows failure to exhaust is due to “good cause”).

All pending motions are denied.

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.