                                                                            FILED
                           NOT FOR PUBLICATION                              OCT 03 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JOSE GRIMALDI,                                   No.   14-56888

              Petitioner-Appellant,              D.C. No. 2:14-cv-03729-JVS

 v.
                                                 MEMORANDUM*
K. HOLLAND,

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                          Submitted September 27, 2016**

Before:      TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.

      California state prisoner Jose Grimaldi appeals from the district court’s

judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction

under 28 U.S.C. § 2253. We review de novo a dismissal for failure to exhaust, see



      *
             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).
Rhoades v. Henry, 638 F.3d 1027, 1034 (9th Cir. 2010), and we vacate and

remand.

      Grimaldi contends that the district court erred in dismissing his habeas

petition as unexhausted because it had discretion to stay the proceedings. After the

district court dismissed Grimaldi’s petition, this court held in Mena v. Long, 813

F.3d 907, 912 (9th Cir. 2016), that “a district court has the discretion to stay and

hold in abeyance fully unexhausted petitions under the circumstances set forth in

Rhines [v. Weber, 544 U.S. 269 (2005)].” We, therefore, vacate and remand for the

district court to determine in the first instance whether Grimaldi is entitled to a stay

and for any further proceedings.

      We express no opinion as to the merits of Grimaldi’s claims, or whether the

procedural requirements of 28 U.S.C. § 2244(d) are satisfied or Grimaldi is entitled

to equitable tolling.

      All pending motions are denied as moot.

      VACATED and REMANDED.




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