Opinion
2:20-cv-1107 JAM DB P
06-28-2021
JOSEPH D. FAIR, JR., Petitioner, v. MATTHEW ATCHLEY, Warden, Respondent.
ORDER
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
Petitioner is a stat e prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition, as originally filed, presents three grounds for relief.
On May 19, 2021, respondent moved to dismiss the petition, asserting that grounds one and two are unexhausted. On June 21, 2021, petitioner filed a motion to stay and abey his federal habeas petition pursuant to Rhines v. Weber, 544 U.S. 269 (1995) and Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) in order to exhaust state court remedies on grounds one and two. (ECF No. 16.) Due to the overwhelming demands on the court's docket, this motion cannot be adjudicated immediately. However, petitioner is not required to await resolution of the pending motion before returning to state court to properly exhaust his state court remedies. In the event that petitioner exhausts any claims in the California Supreme Court prior to this court's resolution of the pending motion, petitioner is advised to file a notice of exhaustion in this court.
Accordingly, IT IS HEREBY ORDERED that:
1. Respondent is hereby directed to file an opposition or a notice of non-opposition to petitioner's stay and abeyance motion within 30 days from the date of this order;
2. Petitioner's reply, if any, is due fourteen days thereafter; and
3. If petitioner exhausts any claims in the California Supreme Court prior to this court's resolution of the pending motion, petitioner shall file a notice of exhaustion in this court.