Richard Romero v. Kelly Harrington

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NOT FOR PUBLICATION JUN 29 2011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. § 2254habeas 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
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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
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