                                                                               FILED
                            NOT FOR PUBLICATION                                 AUG 18 2010

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



                            FOR THE NINTH CIRCUIT


JAMES D. ALLEN, AKA Llord J.P.                    No. 08-56397
Allen,
                                                  D.C. No. 3:07-cv-01746-H-AJB
              Petitioner - Appellant,

  v.                                              MEMORANDUM*

L. E. SCRIBER, Warden; et al.,

              Respondents - Appellees.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                        Argued and Submitted June 11, 2010
                               Pasadena, California

Before: GOODWIN, RAWLINSON, Circuit Judges, and BENNETT, District
Judge.**

       Pursuant to our court’s certificate of appealability, this appeal from denial of

federal habeas corpus relief to James D. Allen is limited to “whether the district


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Mark W. Bennett, U.S. District Judge for the Northern
District of Iowa, sitting by designation.
court abused its discretion by denying appellant’s motion to stay his 28 U.S.C. §

2254 petition while he exhausted claims in state court,” under Rhines v. Weber,

544 U.S. 269 (2005), and King v. Ryan, 564 F.3d 1133 (9th Cir.), cert. denied, 130

S. Ct. 214 (2009). We review a motion to stay exhausted claims for abuse of

discretion. Olvera v. Giurbino, 371 F.3d 569, 572 (9th Cir. 2004). We affirm.

      On May 19, 2004, Allen entered the apartment of Mark Davis and was

taking Davis’s property, when Davis returned and intercepted him. Telling Davis

that he had a knife, Allen ordered Davis to the floor, blindfolded and gagged him,

emptied Davis’s pockets, and took his car keys. In addition to the property that

Allen took from Davis’s apartment, Allen took Davis’s car and used his ATM card

to obtain money. A San Diego County jury found Allen guilty of robbery (Cal.

Penal Code § 211), carjacking (Cal. Penal Code § 215), burglary (Cal. Penal Code

§ 459), false imprisonment (Cal. Penal Code §§ 236, 237(a)), and grand theft (Cal.

Penal Code § 487(a)). Because Allen had three prior serious felony convictions,

one violent felony prison prior, and four “strike” priors, the trial court sentenced

him to 43 years and 4 months to life in prison.

      On direct appeal in the California Supreme Court, Allen raised two issues:

(1) insufficiency of the evidence to support the carjacking conviction, because

there was no evidence that Allen took Davis’s car from his immediate presence,


                                           2
and (2) insufficiency of the evidence to establish that Allen had three prior serious

felony convictions. The California Supreme Court denied Allen’s petition.

Allen’s habeas corpus petition in San Diego Superior Court contained two new

claims: (1) insufficiency of the evidence to support the carjacking conviction,

because there was no evidence that Allen intended to take Davis’s car and no

evidence that he used fear or force, and (2) insufficiency of the evidence to support

his robbery conviction, because there was no evidence that Allen took property

from Davis by means of fear or force. This petition was denied.

      Allen, pro se, filed his federal petition for habeas relief and raised the four

claims that he had raised in state court. He conceded that his claims concerning no

evidence of intent to take Davis’s car to support his carjacking conviction and no

evidence that he took property from Davis’s by fear or force were unexhausted.

Contemporaneously with filing his federal petition, Allen filed a motion to stay and

to hold in abeyance his federal petition while he exhausted his unexhausted state

claims. Noting Allen’s lack of diligence in pursuing his claims and his failure to

argue the merits, the district court denied Allen’s motion for stay and required

Allen (1) to dismiss his habeas petition voluntarily, or (2) to abandon his

unexhausted claims. Allen did not respond timely to the court’s order. Because

Allen’s delinquent response showed that he was unwilling to abandon his


                                           3
unexhausted claims, his petition contained exhausted and unexhausted claims.

Therefore, the district court dismissed Allen’s habeas petition without prejudice to

Allen’s submitting a new petition, when he exhausted all his claims.

      The stay-and-abeyance procedure under Rhines has three requirements: (1) it

“is only appropriate when the district court determines there was good cause for

the petitioner’s failure to exhaust his claims first in state court”; (2) even with good

cause, a “district court would abuse its discretion if it were to grant [a petitioner] a

stay when his unexhausted claims are plainly meritless”; and (3) if the preceding

factors are met, a “district court’s discretion in structuring a stay is limited by the

timeliness concerns reflected in AEDPA”; the district court should not grant a stay

to a petitioner who “engages in abusive litigation tactics or intentional delay.” 544

U.S. at 277, 278; King, 564 F.3d at 1139.

      Applying the Rhines analysis, Allen first has failed to demonstrate good

cause for his delay in pursuing his unexhausted state claims. Second, he has failed

to show that his unexhausted claims have merit. When Allen threatened Davis

with a knife, bound, and gagged him, sufficient use of fear and force by Allen had

occurred. The subsequent taking of Davis’s car keys and his wallet from his

pocket enabled the carjacking and constituted robbery. See People v. Burns, 172

Cal. App. 4th 1251, 1259 (2009) (“All the force that is required to make the


                                            4
offense a robbery is such force as is actually sufficient to overcome the victim’s

resistence . . . .” (citations and internal quotation marks omitted)). Allen concedes

that he left his victim “lying helpless on the floor,” thereby admitting that he had

subdued Davis. Third, Allen has failed to demonstrate that he acted diligently

between his conviction and filing his federal habeas petition to exhaust his

unexhausted claims. The same facts, which Allen knew at his conviction and

sentencing, are the basis for his exhausted and unexhausted claims. Yet, he

delayed over two and a half years in pursuing his unexhausted claims.

      Allen has failed to meet the requirements of Rhines. Under analogous facts

in King, we held that the district court did not abuse its discretion by not granting

a stay under Rhines. 564 F.3d at 1138. Similarly, the district court properly denied

Allen’s motion to stay his habeas petition, while he exhausted his meritless, state-

court claims.

AFFIRMED.




                                           5
                                           FILED
Allen v. Scribner, Case No. 08-56397       AUG 18 2010
Rawlinson, Circuit Judge, concurring:   MOLLY C. DWYER, CLERK
                                         U.S. COURT OF APPEALS

     I concur in the result.
