                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 12 2010

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




                            FOR THE NINTH CIRCUIT

JOSEPH WELDON SMITH,                              No. 08-99004

              Petitioner - Appellant,             D.C. No. 2:07-CV-00318-JCM-
                                                  RJJ
  v.

E.K. MCDANIEL, Warden,                            ORDER *

              Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                       Argued and Submitted October 5, 2010
                             San Francisco, California

Before: KLEINFELD and GRABER, Circuit Judges, and MOLLOY, District
Judge.**

       Under Thompson v. Frank, 599 F.3d 1088, 1090 (9th Cir. 2010) (per

curiam), we lack appellate jurisdiction to review the district court’s stay-and-

abeyance order. Accordingly, the appeal is DISMISSED.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
              The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
