Gabriel Louis HERNANDEZ, Petitioner-Appellant, v. David L. RUNNELS, Warden, Respondent-Appellee, 188 F. App'x 570

MEMORANDUM Gabriel Louis Hernandez appeals the district court’s denial of his habeas petition, arguing that the district court incorrectly failed to offer Hernandez the “stay and abeyance” option. 1. Because Hernandez did not present a mixed petition to the court in his first federal habeas proceeding, the district court was not required to dismiss. See Rose v. Lundy, 455 U.S. 509, 510, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Accordingly, no stay and abeyance considerations arose. See Jefferson v.

Budge, 419 F.3d 1013, 1016 (9th Cir.2005) (recognizing that the stay and abeyance is appropriate when a court is presented with a mixed petition). As the district court did not affirmatively mislead Hernandez, he is not entitled to equitable tolling. See Brambles v. Duncan, 412 F.3d 1066, 1070 (9th Cir.2005). 2. Because we find that Hernandez is not entitled to equitable tolling, we need not address the issue of statutory tolling, as the resolution of that issue would not affect the outcome of the case. 3.

We decline to expand the certificate of appealability to include the uncertified claim because that claim essentially restates Hernandez’s ultimately unsuccessful equitable tolling argument. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.