                                                                            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                           NOT FOR PUBLICATION                              OCT 03 2016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


ROBERT W. ELLIOTT,                               No.   14-17291

              Petitioner-Appellant,              D.C. No. 3:11-cv-00041-MMD

 v.
                                                 MEMORANDUM*
DWIGHT NEVEN, Warden,

              Respondent-Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Miranda M. Du, District Judge, Presiding

                          Submitted September 27, 2016**

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

      Nevada state prisoner Robert W. Elliott appeals from the district court’s

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

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

      *
             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).
remand.

       Elliott 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 Elliott’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 Elliott is entitled to a stay

and for any further proceedings.

       Elliott’s request for judicial notice of state court records is granted.

       In light of our disposition of this appeal, we deny Elliott’s request to expand

the certificate of appealability. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d

1098, 1104-05 (9th Cir. 1999).

       VACATED and REMANDED.




                                            2                                  14-17291
