Throop v. Prosper

286 F. App'x 472

Opinion

MEMORANDUM

**

California state prisoner Edward Anthony Throop appeals from the district court’s order dismissing his 28 U.S.C. § 2254 petition as premature. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we vacate the district court’s dismissal of the petition and remand for further proceedings.

Both parties agree that the district court abused its discretion by denying Throop’s motion to stay his § 2254 habeas petition and dismissing the petition as premature, without considering whether to stay the mixed petition to allow Throop to exhaust his claims in state court. See Jackson v. Roe, 425 F.3d 654, 661 (9th Cir.2005). Accordingly, we remand to the district court to apply the stay-and-abeyance test. See Rhines v. Weber, 544 U.S. 269, 278, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005).

VACATED AND REMANDED.

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