Kevin Brown v. Jim Robertson

FILED NOT FOR PUBLICATION APR 16 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KEVIN A. BROWN, No. 21-16712 Petitioner-Appellant, D.C. No. 2:20-cv-00991-KJM-DB v. JIM ROBERTSON, MEMORANDUM* Respondent-Appellee. Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding Submitted April 8, 2024** San Francisco, California Before: PAEZ and SUNG, Circuit Judges, and FITZWATER,*** District Judge. Petitioner-Appellant Kevin A. Brown (“Brown”), proceeding pro se, appeals the district court’s judgment denying his mixed petition for habeas corpus relief under * 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). *** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1291 and under 28 U.S.C. §§ 2253(a), (c)(1)(A) based on a certificate of appealability granted by a panel of this court on the following issues: “whether the state trial court violated appellant’s constitutional rights when it denied his pretrial request for self-representation under Faretta v. California, 422 U.S. 806 (1975), including whether this claim has been properly exhausted. See 28 U.S.C. § 2253(c)(3); see also 9th Cir. R. 22-1(e).” We DISMISS the appeal because Brown concedes that he raised his pretrial Faretta claim for the first time in federal district court. See 28 U.S.C. § 2254(b)(1)(A). Therefore, his Faretta claim is unexhausted unless an exception to exhaustion applies or the failure to exhaust was excused. See 28 U.S.C. § 2254(b)(1)(B). We REMAND this matter to the district court for further proceedings, including consideration of the exhaustion issues and whether to issue a stay under Rhines v. Weber, 544 U.S. 269 (2005). See, e.g., Robbins v. Carey, 481 F.3d 1143, 1148 (9th Cir. 2007) (approving three-step stay-and-abeyance procedure in the district court as a solution for mixed petitions). DISMISSED and REMANDED. -2-