Summary
dismissing interlocutory appeal from order denying motion to stay federal habeas proceedings to exhaust state remedies because the order was not effectively unreviewable on appeal from a final judgment
Summary of this case from Tran v. MacomberOpinion
No. 14-15296
09-15-2014
GREGORY CALVIN SMITH, Petitioner - Appellant, v. KEVIN CHAPPELL, Warden, Respondent - Appellee.
NOT FOR PUBLICATION
D.C. No. CV 04-3436 JSW MEMORANDUM Appeal from the United States District Court for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted September 9, 2014 San Francisco, California Before: BEA, IKUTA, and HURWITZ, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
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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 jurisdiction 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, 2014 WL 3930452, at *2-4 (9th Cir. Aug. 13, 2014) (holding an order granting a motion to stay is not an appealable 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 (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 unexhausted 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, 131 S. Ct. 1388 (2011) affects our analysis is meritless.
DISMISSED.