                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            JUL 27 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
BRIAN KERRY O’KEEFE,                             No.   15-15519

               Petitioner-Appellant,             D.C. No.
                                                 3:14-cv-00477-RCJ-VPC
 v.

ROBERT LEGRAND, Warden and                       MEMORANDUM*
ATTORNEY GENERAL OF THE STATE
OF NEVADA,

               Respondents-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                              Submitted July 6, 2016**
                              San Francisco, California

Before: SILVERMAN, and NGUYEN, Circuit Judges, and GARBIS,*** Senior
District Judge.



         *
             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 Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.
      Brian O’Keefe appeals the decision of the district court dismissing his

petition for a writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C.

§ 2253, and we vacate the district court’s decision and remand the case for further

proceedings.

      O’Keefe filed the instant habeas petition challenging his Nevada state court

conviction of murder with a deadly weapon. The district court summarily

dismissed the petition, holding that O’Keefe’s state remedies were unexhausted.

      We review the district court’s dismissal of O’Keefe’s petition de novo.

United States v. Avery, 719 F.3d 1080, 1082 (9th Cir. 2013). O’Keefe’s petition,

consisting of 25 handwritten pages and 275 pages of exhibits, contained at least

one claim that was clearly exhausted - his double jeopardy claim, which was

presented to the Nevada Supreme Court on direct appeal and expressly addressed

by that court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v.

Henry, 513 U.S. 364, 365 (1995)). While there are unexhausted claims within the

petition, for example, the claimed violation of his Sixth Amendment rights,

O’Keefe’s petition is a “mixed” petition because it contains both exhausted and

unexhausted claims. Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007).

      Mixed petitions, though not subject to adjudication in federal court, cannot

be dismissed unless the petitioner has, “at a minimum, be[en] offered leave to


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amend the petition to delete any unexhausted claims and to proceed on the

exhausted claims.” Henderson v. Johnson, 710 F.3d 872, 873 (9th Cir. 2013).

The district court thus erred in dismissing O’Keefe’s petition without granting him

the opportunity to amend his petition in this way.

      The district court’s decision is vacated and the case is remanded. The

pending motions for judicial notice are granted. O’Keefe’s petition for a writ of

mandamus is denied. Each party shall bear its own costs.

      VACATED and REMANDED.




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