                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 29 2010

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




                            FOR THE NINTH CIRCUIT



ASTARTE DAVIS-RICE,                              No. 08-15968

               Petitioner - Appellant,           D.C. No. 3:07-cv-05972-MMC

  v.
                                                 MEMORANDUM *
PAUL COPENHAVER, Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Maxine M. Chesney, District Judge, Presiding

                            Submitted October 19, 2010 **

Before:        O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

       Federal prisoner Astarte Davis-Rice appeals pro se from the district court’s

judgment dismissing her 28 U.S.C. § 2241 habeas petition. We have jurisdiction

under 28 U.S.C. § 2253, and we remand to the district court for reconsideration.




          *
             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).
      Davis-Rice contends that the Bureau of Prisons failed to give her credit for

time spent in custody prior to sentencing. The district court dismissed her petition

as duplicative of a previously filed action. In her petition, Davis-Rice conceded

that she previously raised this claim. However, the district court previously

dismissed the claims as unexhausted, and Davis-Rice alleged in her petition that

the claims are now exhausted. We remand to the district court for reconsideration

because the order did not address Davis-Rice’s allegation that her previously

dismissed claims are now exhausted.

      REMANDED.




                                          2                                     08-15968
