FILED NOT FOR PUBLICATION OCT 12 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT JOSEPH WELDON SMITH, No. 08-99004 Petitioner - Appellant, D.C. No. 2:07-CV-00318-JCM- RJJ v. E.K. MCDANIEL, Warden, ORDER * Respondent - Appellee.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding Argued and Submitted October 5, 2010 San Francisco, California Before: KLEINFELD and GRABER, Circuit Judges, and MOLLOY, District Judge.** Under Thompson v. Frank, 599 F.3d 1088, 1090 (9th Cir. 2010) (per curiam), we lack appellate jurisdiction to review the district court’s stay-and- abeyance order. Accordingly, the appeal is DISMISSED.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation.