(HC) Fair v. Atchley ( 2022 )

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. FINDINGS AND RECOMMENDATIONS 14 MATTHEW ATCHLEY, Warden, TO LIFT STAY 15 Respondent. 16 17 Petitioner is a California prisoner challenging his criminal conviction through a petition 18 for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Plaintiff currently proceeds on the 19 first amended complaint which contains a single exhausted claim for relief. (ECF No. 15.) On 20 November 5, 2021, the court stayed this action to allow petitioner an opportunity to return to state 21 court to exhaust judicial remedies concerning two other claims for relief. (See ECF No. 22.) 22 Petitioner was ordered to file an initial status report within 60 days, and to file subsequent status 23 reports every 90 days thereafter, detailing his progress in exhausting his claims. (Id.) 24 After petitioner failed to file any status reports, on July 1, 2022, the court ordered 25 petitioner to show cause why the stay of this case should not be lifted. (ECF No. 23.) Petitioner 26 has not responded to the order to show cause. Therefore, the undersigned will recommend the 27 stay be lifted for this case to proceed on the first amended petition containing petitioner’s only 28 exhausted ground for relief. 1 In accordance with the above, IT IS HEREBY RECOMMENDED: 2 1. The stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) be LIFTED; and 3 2. The Clerk of the Court be directed to reopen this action. 4 These findings and recommendations are submitted to the United States District Judge 5 | assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) 6 | days after being served with these findings and recommendations, any party may file written 7 | objections with the court. The document should be captioned “Objections to Findings and 8 | Recommendations.” Any response to the objections shall be filed and served within seven (7) 9 | days after service of the objections. The parties are advised that failure to file objections within 10 | the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 11 | F.2d 1153 (9th Cir. 1991). 12 | Dated: August 23, 2022 13 14 15 ‘BORAH BARNES DLB7 UNITED STATES MAGISTRATE JUDGE 16 fairl 107 liftstay.fr 17 18 19 20 21 22 23 24 25 26 27 28