                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT               September 19, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-11302
                           Summary Calendar


DANIEL YBARRA,

                                      Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                      Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 3:02-CV-2380
                       --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     This court issued Daniel Chavez Ybarra (TDCJ # 1016250) a

certificate of appealability (COA) to appeal the district court’s

dismissal of his 28 U.S.C. § 2254 petition wherein he challenged

a 1994 deferred-adjudication conviction for aggravated kidnaping

and a 2000 state-court judgment revoking his probation and

sentencing him to 24 years of imprisonment.    During the pendency

of the petition, Ybarra filed pleadings indicating that his

counsel during the revocation proceedings was not licensed to


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                           No. 04-11302
                                -2-


practice law during the revocation proceedings.    Finding that the

claim was not exhausted in the state courts, the district court

dismissed the “mixed” petition without prejudice.

     In his motion for a COA in this court, Ybarra argued for the

first time that the district court should have sua sponte stayed

the proceedings rather than dismiss the petition for failure to

exhaust because any subsequent petition would be time-barred

pursuant to 28 U.S.C. § 2244(d)(1).   During the pendency of

Ybarra’s motion, the Supreme Court decided Rhines v. Weber, 544

U.S. 269 (2005), which addressed, in part, the situation in which

a petitioner filed a timely but mixed petition in federal

district court and the court dismissed the petition for failure

to exhaust after the limitations period had expired.     Id. at 275.

This court issued Ybarra a COA on the issue whether, in light of

Rhines, the district court reversibly erred in dismissing

Ybarra’s petition rather than sua sponte holding it in abeyance.

     A district court has discretion to stay, rather than

dismiss, a “mixed” habeas petition “only in the limited

circumstances” where there is “good cause” for the petitioner’s

failure to exhaust his claim first in state court, the

petitioner’s unexhausted claim is potentially meritorious, and

the petitioner has not engaged in abusive litigation tactics or

intentional delay.   Rhines, 544 U.S. at 277-78.

     Ybarra’s only assertion on appeal is that his counsel’s

suspension from practice for non-payment of taxes rendered her
                             No. 04-11302
                                  -3-


per se ineffective.    This court has declined to apply a per se

ineffectiveness rule in situations involving unlicensed

attorneys.     See United States v. Maria-Martinez, 143 F.3d 914,

916-917 (5th Cir. 1998).    Because his claim is not potentially

meritorious, Ybarra has not shown that the district court

reversibly erred by not sua sponte granting a stay in the

proceedings.     See Rhines, 544 U.S. at 277.

     AFFIRMED.
