                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              NOV 09 2015
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


LANCE DEON HAWES,                                  No. 14-15805

              Petitioner - Appellant,              D.C. No. 3:10-cv-00655-RCJ-VPC

 v.
                                                   MEMORANDUM*
JACK PALMER and NEVADA
ATTORNEY GENERAL,

              Respondents - Appellees.


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

                       Argued and Submitted October 21, 2015
                             San Francisco, California

Before: THOMAS, Chief Judge and REINHARDT and McKEOWN, Circuit
Judges.

      Petitioner Lance Hawes appeals the district court’s dismissal of his pro se

petition for federal habeas relief from a state court conviction. In the district court,

the state moved to dismiss Hawes’s petition as unexhausted, and Hawes requested



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
a stay to return to the state court to effectuate exhaustion. The district court denied

Hawes’s request and required him to abandon his unexhausted claims or suffer a

dismissal of the entire petition. Hawes, with explicit protest, abandoned the

unexhausted claims. Afterward, the district court addressed the remaining claims

on the merits. On appeal, through his appointed counsel, Hawes argues that the

district court abused its discretion by denying the stay and requiring Hawes to

dismiss his claims. He also requests that this court grant a certificate of

appealability on one uncertified issue: that Hawes’s counsel on direct appeal to the

Nevada Supreme Court was ineffective for failing to raise a Confrontation Clause

claim.

         We agree that the district court abused its discretion by requiring Hawes to

dismiss his claims because the district court failed to consider whether Hawes had

a remedy available in state court. As the government notes in its answering brief

and Hawes acknowledged at oral argument, Nevada’s procedural rules would bar

any new state petition. See Nevada Revised Statutes §§ 34.726, 34.800, 34.810.

Therefore, the district court should have treated the unexhausted claims as

exhausted for federal habeas purposes, and then analyzed whether petitioner had

established cause and prejudice to overcome the state procedural bar. See Casey v.

Moore, 386 F.3d 896, 920–22 (9th Cir. 2004) (“Because at the time [the petitioner]


                                            2
filed for habeas relief in the federal district court no further state remedies were

available to him, his claims are exhausted.”). Instead of conducting that analysis,

the district court required the petitioner to dismiss the claims under the erroneous

assumption that he still had viable state court remedies. Accordingly, on remand,

the district court should reinstate Hawes’s dismissed claims and consider whether

Hawes can show cause and prejudice to overcome the procedural default of any

claims that were not properly presented to the state’s highest court.1

      We do not address Hawes’s uncertified issue because it differs from the

claim considered by the district court. The district court addressed whether

Hawes’s counsel was ineffective for failing to raise a hearsay challenge on direct

appeal. Here, Hawes asks us to consider whether counsel was ineffective for

failing to raise a Confrontation Clause challenge on direct appeal. On remand, the

district court should consider, in the first instance, whether Hawes’s pro se petition

properly presented this claim and, if so, its merit.

      REVERSED AND REMANDED.



      1
        At oral argument, Hawes’s appointed counsel suggested that some of the
dismissed claims had, in fact, been presented to the state’s highest court. On
remand, Hawes should be permitted to clarify which claims, if any, were properly
presented. Those claims, of course, would not be procedurally defaulted and
Hawes would not need to show cause or prejudice in order to have those claims
addressed on the merits.

                                            3
