125 F.3d 859
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Charles RAY, Petitioner-Appellant,v.Jeane E. ANDERSON, Warden*;  AttorneyGeneral of the State of California, Respondents-Appellees.
No. 96-56487.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 22, 1997.***Decided Sept. 26, 1997.

Appeal from the United States District Court for the Central District of California, No. CV-96-05136-JSL;  J. Spencer Letts, District Judge, Presiding.
Before:  HALL, BRUNETTI, and THOMAS, Circuit Judges.


1
MEMORANDUM**


2
Charles Ray, a California state prisoner, appeals pro se the district court's summary dismissal without prejudice of his 28 U.S.C. § 2254 habeas petition for failure to exhaust state remedies.  We have jurisdiction pursuant to 28 U.S.C. § 2253, review de novo, see Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir.), cert. denied, 117 S.Ct. 588 (1996), and we reverse and remand.


3
Ray contends that although he mistakenly indicated on the face of his petition that his state remedies were pending, the district court erred by dismissing his petition because he attached as an exhibit the California Supreme Court's order denying his writ of habeas corpus.


4
"[A]n appellate court may give relief if state remedies are exhausted by the time it acts, even if these remedies were not exhausted when the habeas corpus petition was filed."  Schwartzmiller v. Gardner, 752 F.2d 1341, 1344 (9th Cir.1984).


5
Here, the appellees concede that Ray has exhausted his state remedies.  Accordingly, we need not decide whether the court correctly dismissed the petition in light of Ray's representations on the face of the petition and the conflicting evidence annexed to the petition.  Instead, we conclude that exhaustion has been satisfied and we remand to the district court for consideration of the merits of his claims.  See id.

REVERSED AND REMANDED.1


*
 Pursuant to Fed.  R.App. P. 43(c) we substitute Warden Jeane E. Anderson for Warden Gail Lewis


**
 * The panel unanimously finds this case suitable for decision without oral argument.  See Fed.  R.App. P. 34(a);  9th Cir.  R. 34-4


**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.  R. 36-3


1
 We deny appellee's request that we take judicial notice of the district court file in Ray v. Lewis, CV 96-2185-RMT, because that file does not have a direct relation to matters at issue in this appeal.  See Rancheria Citizens Council v. Borneo, Inc.  (United States ex rel.  Robinson), 971 F.2d 244, 248 (9th Cir.1992)


