
    Robert W. ELLIOTT, Petitioner-Appellant, v. Dwight NEVEN, Warden, Respondent-Appellee.
    No. 14-17291
    United States Court of Appeals, Ninth Circuit.
    Submitted September 27, 2016 
    
    Filed October 03, 2016
    Jeremy Baron, Las Vegas, NV.
    Daniel M. Roche, Deputy Assistant General Counsel, Carson City, NV.
    Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.
    
      
      The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
    
   MEMORANDUM

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. 2011), and we vacate and 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 [125 S.Ct. 1528, 161 L.Ed.2d 440] (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. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
     