(HC) Fair v. Atchley ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH D. FAIR, JR., No. 2:20-cv-1107 JAM DB P 12 Petitioner, 13 v. ORDER 14 MATTHEW ATCHLEY, Warden, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. The petition, as originally filed, presents three grounds for relief. 19 On May 19, 2021, respondent moved to dismiss the petition, asserting that grounds one 20 and two are unexhausted. On June 21, 2021, petitioner filed a motion to stay and abey his federal 21 habeas petition pursuant to Rhines v. Weber, 544 U.S. 269 (1995) and Kelly v. Small, 315 F.3d 22 1063 (9th Cir. 2003) in order to exhaust state court remedies on grounds one and two. (ECF No. 23 16.) Due to the overwhelming demands on the court’s docket, this motion cannot be adjudicated 24 immediately. However, petitioner is not required to await resolution of the pending motion before 25 returning to state court to properly exhaust his state court remedies. In the event that petitioner 26 exhausts any claims in the California Supreme Court prior to this court’s resolution of the 27 pending motion, petitioner is advised to file a notice of exhaustion in this court. 28 //// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Respondent is hereby directed to file an opposition or a notice of non-opposition to 3 || petitioner’s stay and abeyance motion within 30 days from the date of this order; 4 2. Petitioner’s reply, if any, is due fourteen days thereafter; and 5 3. If petitioner exhausts any claims in the California Supreme Court prior to this court’s 6 | resolution of the pending motion, petitioner shall file a notice of exhaustion in this court. 7 | Dated: June 28, 2021 8 9 10 ORAH BARNES DLB7 UNITED STATES MAGISTRATE JUDGE 11 | fair1107.stayabey 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28