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No. 8688179
United States Court of Appeals for the Ninth Circuit
Throop v. Prosper
No. 8688179 · Decided July 31, 2008
No. 8688179·Ninth Circuit · 2008·
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Case Details
Court
United States Court of Appeals for the Ninth Circuit
Decided
July 31, 2008
Citation
No. 8688179
Disposition
See opinion text.
Full Opinion
MEMORANDUM ** California state prisoner Edward Anthony Throop appeals from the district court’s order dismissing his 28 U.S.C. § 2254 petition as premature. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we vacate the district court’s dismissal of the petition and remand for further proceedings. Both parties agree that the district court abused its discretion by denying Throop’s motion to stay his § 2254 habeas petition and dismissing the petition as premature, without considering whether to stay the mixed petition to allow Throop to exhaust his claims in state court. See Jackson v. Roe, 425 F.3d 654, 661 (9th Cir.2005). Accordingly, we remand to the district court to apply the stay-and-abeyance test. See Rhines v. Weber, 544 U.S. 269, 278 , 125 S.Ct. 1528 , 161 L.Ed.2d 440 (2005). VACATED AND REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Plain English Summary
MEMORANDUM ** California state prisoner Edward Anthony Throop appeals from the district court’s order dismissing his 28 U.S.C.
Key Points
01MEMORANDUM ** California state prisoner Edward Anthony Throop appeals from the district court’s order dismissing his 28 U.S.C.
02§ 2253 , and we vacate the district court’s dismissal of the petition and remand for further proceedings.
03Both parties agree that the district court abused its discretion by denying Throop’s motion to stay his § 2254 habeas petition and dismissing the petition as premature, without considering whether to stay the mixed petition to allow Throop
04Accordingly, we remand to the district court to apply the stay-and-abeyance test.
Frequently Asked Questions
MEMORANDUM ** California state prisoner Edward Anthony Throop appeals from the district court’s order dismissing his 28 U.S.C.
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This case was decided on July 31, 2008.
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