Hill

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DAVID CAPPS, No. 2:25-cv-1047 WBS AC P Petitioner, v. ORDER JAMES HILL, Respondent. 16 Petitioner, a state prisoner proceeding through counsel, has filed a motion to stay this action under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), or alternatively under Rhines v. Weber, 544 U.S. 269 (2009), pending exhaustion of Claims One through Three in state court. ECF No. 13. Respondent has opposed the motion, arguing that all claims in the federal petition have already been exhausted and the only part of the petition that has not been presented to the state court is petitioner’s new declaration. ECF No. 14. He further argues that a stay would be futile because the claim the declaration supports is meritless even if the declaration is considered. Id. at 2. Petitioner has not filed a reply. In light of respondent’s affirmative position that the claims petitioner seeks to return to state court to exhaust are already…