Atchley
(HC) Fair v. Atchley
Opinion
Trial Court Opinion
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JOSEPH D. FAIR, JR., No. 2:20-cv-1107 JAM DB P Petitioner, v. ORDER AND FINDINGS AND
RECOMMENDATIONS
MATTHEW ATCHLEY, Warden, Respondent. 16 Petitioner, a state prisoner proceeding pro se, filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moved to dismiss the petition, asserting it is a mixed petition with claims one and two unexhausted. (ECF No. 13.) Petitioner concedes that claims one and two are unexhausted and has requested a stay under either Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (“Rhines”) or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) (“Kelly”). (ECF No. 16.) Respondent opposes a stay under Rhines but does not oppose a stay under Kelly. Petitioner fails to meet the requirements for a stay and abeyance under Rhines. Accordingly, the undersigned recommends the motion be granted under the Kelly procedure. I. Background The petition raises three claims…