(HC) Harms v. Silva

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA GREGORY HARMS, No. 2:25-cv-1048 CSK P 12 Petitioner, 13 v. ORDER EDWARD SILVA, 15 Respondent.

17 Petitioner, a state prisoner proceeding through counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner paid the filing fee.

19 Petitioner states that he filed, with the petition, a motion to stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) to exhaust unexhausted claims.1 (ECF No. 1-2 at 12.)

21 However, the record does not contain a motion to stay pursuant to Kelly. This Court also observes that a stay pursuant to Kelly includes amending the petition to delete any unexhausted claims. Kelly, 315 F.3d at 1070.

24 Accordingly, IT IS HEREBY ORDERED that within twenty-one days of the date of this order, petitioner shall file the motion to stay referred to in the petition.

26 /// Petitioner does not state that he will seek a motion to stay pursuant to Rhines v. Weber, 544 U.S. 28 269 (2005).

1 | Dated: April 14, 2025 ~ CHI S00 KIM |) Harm1048.100fee/2 UNITED STATES MAGISTRATE JUDGE