                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           AUG 17 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
EDWARD Y. GARDNER,                               No.   14-35644

              Petitioner-Appellant,              D.C. No. 3:06-cv-00259-RRB

 v.
                                                 MEMORANDUM*
FRANK LUNA, Warden,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Alaska
                    Ralph R. Beistline, District Judge, Presiding

                            Submitted August 4, 2016**
                               Anchorage, Alaska

Before: FISHER, PAEZ, and HURWITZ, Circuit Judges.

      Edward Y. Gardner appeals the district court’s order lifting a previously

imposed stay of his unexhausted habeas claims—a Confrontation Clause claim and

a Due Process Clause claim—and dismissing his habeas petition. We affirm.


         *
             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 district court did not abuse its discretion in lifting the Rhines stay. See

Rhines v. Weber, 544 U.S. 269 (2005).1 As the Rhines Court cautioned, “[e]ven

where stay and abeyance is appropriate, the district court’s discretion in structuring

the stay is limited by the timeliness concerns reflected in AEDPA. A mixed

petition should not be stayed indefinitely.” Id. at 277. Here, the district court

lifted the stay on Gardner’s unexhausted claims because the stay was granted

“nearly six years ago and no supplemental pleadings appear to have been filed

regarding these claims.” Instead, in his second application for post-conviction

relief, Gardner claimed only that he had been “denied his constitutionally protected

right to effective assistance of counsel, secured to him by the Sixth Amendment to

the United State Constitution.” He never asserted a direct Confrontation Clause

claim or a Due Process Clause claim. Therefore, the district court acted within its

discretion in lifting the Rhines stay.

      Nor did the district court err in subsequently dismissing these claims as

unexhausted. “Under 28 U.S.C. § 2254(b)(1)(A), the federal courts are not to grant

a writ of habeas corpus brought by a person in custody pursuant to a state court

judgment unless ‘the applicant has exhausted the remedies available in the courts


      1
        As an initial matter, it is clearly within the district court’s discretion to
issue or maintain a Rhines stay even “in cases of fully unexhausted petitions.” See
Mena v. Long, 813 F.3d 907, 910 (9th Cir. 2016).
                                           2
of the State.’” Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008) (quoting

28 U.S.C. § 2254(b)(1)(A)). Because Gardner failed to exhaust his Confrontation

and Due Process Clause claims in state court, the district court properly dismissed

them once it lifted the Rhines stay.

      AFFIRMED.




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