approving three-step stay-and-abeyance procedure in the district court as a solution for mixed petitions
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- approving three-step stay-and-abeyance procedure in the district court as a solution for mixed petitions
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The opinion
FILED
NOT FOR PUBLICATION
APR 16 2024
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN A. BROWN, No. 21-16712
Petitioner-Appellant, D.C. No.
2:20-cv-00991-KJM-DB
v.
JIM ROBERTSON, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Chief District Judge, Presiding
Submitted April 8, 2024**
San Francisco, California
Before: PAEZ and SUNG, Circuit Judges, and FITZWATER,*** District Judge.
Petitioner-Appellant Kevin A. Brown (“Brown”), proceeding pro se, appeals
the district court’s judgment denying his mixed petition for habeas corpus relief under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Sidney A. Fitzwater, United States District Judge for the
Northern District of Texas, sitting by designation.
28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1291 and under 28 U.S.C.
§§ 2253(a), (c)(1)(A) based on a certificate of appealability granted by a panel of this
court on the following issues: “whether the state trial court violated appellant’s
constitutional rights when it denied his pretrial request for self-representation under
Faretta v. California, 422 U.S. 806 (1975), including whether this claim has been
properly exhausted. See 28 U.S.C. § 2253(c)(3); see also 9th Cir. R. 22-1(e).”
We DISMISS the appeal because Brown concedes that he raised his pretrial
Faretta claim for the first time in federal district court. See 28 U.S.C.
§ 2254(b)(1)(A). Therefore, his Faretta claim is unexhausted unless an exception to
exhaustion applies or the failure to exhaust was excused. See 28 U.S.C.
§ 2254(b)(1)(B). We REMAND this matter to the district court for further
proceedings, including consideration of the exhaustion issues and whether to issue a
stay under Rhines v. Weber, 544 U.S. 269 (2005). See, e.g., Robbins v. Carey, 481
F.3d 1143, 1148 (9th Cir. 2007) (approving three-step stay-and-abeyance procedure
in the district court as a solution for mixed petitions).
DISMISSED and REMANDED.
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