                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 29 2011

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




                            FOR THE NINTH CIRCUIT



RICHARD ROMERO,                                  No. 09-55170

              Petitioner - Appellant,            D.C. No. 3:05-cv-01738-JM-AJB

  v.
                                                 MEMORANDUM *
KELLY HARRINGTON, Warden,

              Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Southern District of California
                 Jeffrey T. Miller, Senior District Judge, Presiding

                        Argued and Submitted June 6, 2011
                              Pasadena, California

Before: TROTT and RYMER, Circuit Judges, and BEISTLINE, Chief District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Ralph R. Beistline, Chief District Judge for the U.S.
District Court for Alaska, Anchorage, sitting by designation.
      Richard Romero appeals the district court’s denial of his 28 U.S.C. § 2254

habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C. §§ 1291,

2253, and we affirm.




                                           I

      The district court did not err in dismissing the previously unexhausted

claims because “[t]he appropriate time to assess whether a prisoner has exhausted

his state remedies is when the federal habeas petition is filed, not when it comes on

for a hearing in the district court or court of appeals.” Gatlin v. Madding, 189 F.3d

882, 889 (9th Cir. 1999) (quoting Brown v. Maass, 11 F.3d 914, 915 (9th Cir.

1993)). Romero had two ways to have his previously unexhausted claims heard:

seek a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005), or exhaust the

claims in state court and then amend his federal petition, the Kelly v. Small, 315

F.3d 1063 (9th Cir. 2003), procedure. He did not successfully pursue either.




                                          II

      The district court did not abuse its discretion in denying Romero’s Rhines

motion to stay the proceedings. As the district court stated, the proffered reasons

were “ordinary and routine”—limited access to the prison library and difficulties


                                          2
meeting the filing deadline—and do not constitute the “limited circumstances”

under which a stay is appropriate. See Wooten v. Kirkland, 540 F.3d 1019, 1024

(9th Cir. 2008) (quoting Rhines, 544 U.S. at 277)).

      AFFIRMED




                                         3
