Bailey

MEMORANDUM *

Anthony Bailey appeals, following a remand from this court, the district court’s denial of his federal habeas petition and motion for reconsideration of the denial of his motion for a stay. Because the parties are aware of the complicated factual and procedural history of this case, we do not recount it here. We affirm in part and dismiss in part.

We find that the certified issue on appeal is properly before us. The question of whether the district court violated Kelly v. Small, 315 F.3d 1063 (9th Cir.2003), or Rhines v. Weber, 544 U.S. 269 , 125 S.Ct. 1528 , 161 L.Ed.2d 440 (2005), when it declined to issue a stay and abeyance so that Bailey could exhaust claim three of his federal habeas petition is now moot. As Bailey concedes, it is now unnecessary to permit him to present claim three in federal court because the state court has already granted him the relief sought in that claim.

We will not address the district court’s denial of Bailey’s motion on remand for reconsideration of the denial of his motion for a stay because, in so far as this issue is raised in Bailey’s opening brief, it constitutes an uncertified interlocutory appeal and Bailey has not made “a…