                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 10 2010

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



REYNANTE PRE,                                    No. 08-55957

              Petitioner - Appellant,            D.C. No. 3:07-cv-00890-W-WMC

  v.
                                                 MEMORANDUM *
VICTOR M. ALMAGER, Warden; BILL
LOCKYER, Attorney General of the State
of California,

              Respondents - Appellees.



                    Appeal from the United States District Court
                      for the Southern District of California
                    Thomas J. Whelan, District Judge, Presiding

                            Submitted August 4, 2010 **
                               Pasadena, California

Before: REINHARDT and SILVERMAN, Circuit Judges, and SINGLETON,
Senior District Judge.***



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
       Reynante Pre, a California state prisoner, appeals the district court’s denial

of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction for

attempted voluntary manslaughter, mayhem, torture, robbery, and burglary. Pre

submitted a “mixed petition” containing both exhausted and unexhausted claims.

District courts “must dismiss . . . ‘mixed petitions,’ leaving the prisoner with the

choice of returning to state court to exhaust his claims or of amending or

resubmitting the habeas petition to present only exhausted claims to the district

court.” Rose v. Lundy, 455 U.S. 509, 510 (1982). Alternatively, in some

circumstances, a district court may stay a mixed petition and hold it in abeyance

while the petitioner returns to state court. See Rhines v. Weber, 544 U.S. 269, 277

(2005). A district court may not do what the district court did here—dismiss only

the unexhausted claims and proceed to adjudicate the merits of the exhausted

portion of the petition.

       The state argues that a district court may deny unexhausted claims on the

merits “when it is perfectly clear that the applicant does not raise even a colorable

federal claim.” Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). True, but

here the district court did not deny the unexhausted claims on the merits; it denied

those claims solely for lack of exhaustion. We therefore may not reach the merits

of the petition.
      On remand, if the district court does not deny the unexhausted claims under

Cassett, it shall advise appellant that he may move to amend his petition to delete

his unexhausted claims. See Jefferson v. Budge, 419 F.3d 1013, 1016 (9th Cir.

2005). Should he then wish to exhaust those claims, he may request that the

district court stay his amended petition and hold it in abeyance while he does so.

See King v. Ryan, 564 F.3d 1133, 1138-40 (9th Cir. 2009).

      VACATED and REMANDED.
