                                                                            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                            NOT FOR PUBLICATION                             OCT 03 2016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


MATTHEW A. MOLINA,                               No.   14-15078

               Petitioner-Appellant,             D.C. No. 2:13-cv-01926-LKK

 v.
                                                 MEMORANDUM*
DAVE DAVEY, Warden,

               Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence K. Karlton, District Judge, Presiding

                          Submitted September 27, 2016**

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

      California state prisoner Matthew A. Molina appeals from the district court’s

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




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

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

remand.

      Molina 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 Molina’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 Molina is entitled to a stay

and for any further proceedings.

      Molina’s unopposed request for judicial notice of state court records is

granted.

      VACATED and REMANDED.




                                           2                                 14-15078
