(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, 15 Respondent. 16 17 Petitioner, a state prisoner, proceeds pro se with an application for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. This matter was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 30, 2021, the magistrate judge filed findings and recommendations herein 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within 30 days. Neither party has filed 23 objections to the findings and recommendations. 24 The court has reviewed the file and finds the findings and recommendations to be 25 supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY 26 ORDERED: 27 1. The findings and recommendations filed August 30, 2021, are adopted in full; 28 2. Petitioner’s motion to stay (ECF No. 16) is DENIED under the procedure set forth in 1 Rhines v. Weber, 544 U.S. 269, 277-78 (2005), and GRANTED under the procedure authorized 2 by the Ninth Circuit in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002); 3 3. The first amended petition for writ of habeas corpus (ECF No. 15) is deemed filed and 4 respondent’s motion to dismiss (ECF No. 13) is DENIED without prejudice as moot; 5 4. This action is STAYED pending further exhaustion of state remedies; 6 5. Petitioner is DIRECTED to file an initial status report detailing his progress in the 7 state courts within sixty (60) days of the date of service of this order, and then to file periodic 8 status reports every ninety (90) days thereafter until exhaustion is complete; 9 6. Petitioner is DIRECTED to file an amended petition containing all exhausted claims 10 within thirty (30) days following the final order of the state courts; 11 7. Petitioner is forewarned that failure to comply with the order to file status reports will 12 result in the court vacating the stay; and 13 8. The Clerk of the Court is directed to administratively close this case for purposes of 14 case status, pending exhaustion. 15 16 17 Dated: November 4, 2021 /s/ John A. Mendez 18 THE HONORABLE JOHN A. MENDEZ 19 UNITED STATES DISTRICT COURT JUDGE 20 21 22 23 24 25 26 27 28