(HC) Fair v. Atchley

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JOSEPH D. FAIR, JR., No. 2:20-cv-1107-JAM-DB P 12 Petitioner, 13 v. ORDER MATTHEW ATCHLEY, 15 Respondent.

17 Petitioner, a state prisoner, proceeds pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United States Magistrate Judge 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 which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within 30 days. Neither party has filed objections to the findings and recommendations.

24 The court has reviewed the file and finds the findings and recommendations to be supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY 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 Rhines v. Weber, 544 U.S. 269, 277-78 (2005), and GRANTED under the procedure authorized 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 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 state courts within sixty (60) days of the date of service of this order, and then to file periodic 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 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 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 case status, pending exhaustion.

Dated: November 4, 2021 /s/ John A. Mendez THE HONORABLE JOHN A. MENDEZ 19 UNITED STATES DISTRICT COURT JUDGE