                                                                             FILED
                            NOT FOR PUBLICATION                              SEP 15 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

GREGORY CALVIN SMITH,                             No. 14-15296

              Petitioner - Appellant,             D.C. No. CV 04-3436 JSW

  v.
                                                  MEMORANDUM*
KEVIN CHAPPELL, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                           Submitted September 9, 2014**
                             San Francisco, California

Before: BEA, IKUTA, and HURWITZ, Circuit Judges.

       Gregory Calvin Smith appeals the denial of his motion to stay federal habeas

proceedings in the district court while he returns to state court to exhaust 18 of the



        *
             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).

                                          -1-
60 claims raised in his second amended federal habeas petition. We lack appellate

jurisdiction over this interlocutory appeal. District court orders denying motions to

stay federal habeas proceedings to allow the exhaustion of state remedies are

reviewable on appeal after the district court enters a final judgment. See, e.g.,

Blake v. Baker, 745 F.3d 977, 979–80, 983–84 (9th Cir. 2014); Wooten v.

Kirkland, 540 F.3d 1019, 1022–24 (9th Cir. 2008); Olvera v. Giurbino, 371 F.3d

569, 572–74 (9th Cir. 2004); cf. Thompson v. Frank, 599 F.3d 1088, 1090 (9th Cir.

2010) (per curiam); Stanley v. Chappell, No. 13-15987, 2014 WL 3930452, at

*2–4 (9th Cir. Aug. 13, 2014) (holding an order granting a motion to stay is not an

appealable final order). Therefore, the district court’s order here fails the third

requirement of the collateral order doctrine, that the order be “effectively

unreviewable on appeal from a final judgment,” Coopers & Lybrand v. Livesay,

437 U.S. 463, 468 (1978). The district court’s decision to adjudicate Smith’s

exhausted claims does not change this conclusion. If we determine on appeal of

final judgment that the district court erred in denying the stay, we can remand with

instructions to stay Smith’s unexhausted claims until he has exhausted his state

remedies. See, e.g., Olvera, 371 F.3d at 573–74. Because the district court could

then consider any new evidence presented by Smith to the state court, Smith’s

argument that Cullen v. Pinholster, 131 S. Ct. 1388 (2011) affects our analysis is

                                          -2-
meritless.

      DISMISSED.




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