Gay

dissenting:

Judge Ikuta would dismiss this appeal for lack of jurisdiction under the collateral order doctrine. See Jackson v. Vasquez, 1 F.3d 885, 887-88 (9th Cir.1993).

MEMORANDUM *

Kenneth Earl Gay appeals the district court’s denial of his motion to litigate a mixed habeas petition in federal court. Gay was convicted and sentenced to death in 1985 for murdering police officer Paul Verna. In 1998, the California Supreme Court reversed Gay’s conviction, and Gay was resentenced to death in 2000. As a result of Gay’s investigation for the penalty-phase retrial, he discovered new evidence that he claims is exculpatory. Gay filed a federal habeas petition in 2001 challenging his guilt determination. The district court determined that seventeen of Gay’s claims had not been previously presented to the California Supreme Court and were therefore unexhausted. The district court granted Gay’s request to hold the federal habeas proceedings in abeyance pending exhaustion of those claims in state court. Gay filed a new state habeas petition with the state Supreme Court in December 2004.

In June 2006, Gay moved the federal district court to excuse him from the exhaustion requirement. The district court denied Gay’s motion, and Gay appealed. We have jurisdiction under 28 U.S.C. § 1291 pursuant to the interlocutory appeal doctrine set forth in Cohen v.…