Gregory Harms v. Edward Silva

Summary

The United States District Court for the Eastern District of California directs Gregory Harms to file, within twenty-one days, the motion to stay referenced in his § 2254 habeas petition. The court notes that a stay under Kelly v. Small requires amendment of the petition to delete unexhausted claims and observes that the record did not contain the referenced motion.

Holdings

1. Because the record did not contain the Kelly motion referenced by petitioner, the court ordered petitioner to file that motion within twenty-one days of the order.

Questions Presented

1. Whether petitioner should be ordered to file the Kelly v. Small motion to stay referenced in his habeas petition when the motion was absent from the record.

Disposition

other