FILED NOT FOR PUBLICATION APR 16 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS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.

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