J. THOMAS MARTEN, District Judge.
On October 26, 2016, the court dismissed Ronald Gray's habeas petition under 28 U.S.C. § 2241 because it contained both exhausted and unexhausted claims. Dkts. 111, 112. The dismissal was without prejudice to refiling after petitioner exhausts all of the claims or resubmits the petition to proceed solely on the exhausted claims.
On November 21, 2016, respondent filed notice in this court of intent to designate a new date for petitioner's execution. Dkt. 113. The notice asserted that although the court had previously stayed the execution "until further order of the court," (Dkt. 7), the dismissal of the petition "resolved the case" and thus "removes the stay of execution entered in this case." Dkt. 113 at 1. In response, petitioner argues that under the plain terms of the prior stay order, the stay remains in effect. Dkt. 114 at 3. Petitioner further contends this court has jurisdiction under 28 U.S.C. § 2251 to enter or maintain a stay to protect petitioner's right to seek future federal habeas corpus review, notwithstanding the dismissal of the petition. Petitioner's attorneys represent that they intend to complete and file a petition in the military courts "in the coming weeks" to exhaust petitioner's coram nobis claims (Dkt. 114 at 2, n.1), and they ask the court to "clarify and maintain its stay of execution to ensure that Petitioner is allowed the opportunity to pursue his claims under the writ of habeas corpus." Id. at 5.
The absence of a pending habeas petition makes the basis for this court's jurisdiction to issue a stay of execution problematic. Section 2251, the provision cited by petitioner and relied on by the Supreme Court as the basis for a stay in McFarland v. Scott, 512 U.S. 849 (1994), applies when a habeas corpus proceeding is "pending." By its terms the statute is also limited to persons convicted in state court. Based on the reasoning of McFarland, however, it seems likely the court has jurisdiction to stay petitioner's execution if doing so is necessary to prevent the deprivation of his right to present a colorable federal habeas petition. See McFarland, 512 U.S. at 859 ("the right to counsel necessarily includes a right for that counsel meaningfully to research and present a defendant's habeas claims. Where this opportunity is not afforded, `[a]pproving the execution of a defendant before his [petition] is decided on the merits would be clearly improper.'" (citing Barefoot v. Estelle, 463 U.S. 880, 889 (1983)). See also 28 U.S.C. § 1651 (federal courts may issue all writs necessary in aid of their jurisdiction).
Assuming without deciding that the court has authority to issue a stay without refiling of the unexhausted petition, any such authority is discretionary rather than a matter of automatic right.