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Petitioner initially filed a reply on August 2, 2005 (Doc. 18). That document, 1

however, was not served on respondent. By order issued on August 11, 2005, petitioner was

directed to re-serve the August 2, 2005, document on respondent and to file proof of such reservice in this court within 15 days of the date of the order. While petitioner did not specifically

comply with this order by filing proof of service with the court, petitioner did file and properly

serve a reply brief on August 30, 2005 (Doc. 22), which the court will consider.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

WILLIAM A. ROMERO, No. CIV S-04-0459-MCE-CMK-P

Petitioner, 

vs. ORDER

D. RUNNELS,

Respondent.

 /

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s motion for

an order staying and holding the instant petition in abeyance pending exhaustion of state court

remedies (Doc. 15). Respondent has filed an opposition (Doc. 16), and petitioner has filed a

reply (Doc. 22).1

/ / /

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The court is unwilling to construe plaintiff’s motion for a “stay and abeyance” 2

order as a motion to amend the petition. If petitioner desires to amend the petition, he should

seek to do so through a noticed motion which provides the respondent an opportunity to be

heard.

2

According to petitioner, all of the claims presented in the instant habeas petition

are exhausted. Thus, this is not a “mixed” petition scenario where petitioner has presented

numerous claims in the same habeas corpus petition, but some of those claims are unexhausted. 

Rather, as petitioner states, he is seeking a stay in order to exhaust completely new claims which

were not included in the instant petition. Based on this distinction, the court finds that a “stay

and abeyance” order is not appropriate at this time. This is not to say, however, that a “stay and

abeyance” order would not be appropriate should petitioner be granted leave to amend the instant

petition to include the unexhausted claim.2

The court will now address petitioner’s failure to comply with various court

orders in this case. As indicated above, petitioner was directed to re-serve his reply to

respondent’s opposition to his motion for a “stay and abeyance” order, but failed to do so. By

order issued on August 11, 2005, petitioner was also directed to re-serve his August 3, 2005,

notice of change of address on respondent and to file proof of such re-service in this court within

15 days of the date of the order. Again, petitioner has failed to comply. Petitioner will be

required to show cause and is warned that failure to respond to this order may result in dismissal

of the action. See Local Rule 11-110. 

/ / /

/ / /

/ / /

/ / /

/ / /

/ / /

/ / /

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Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner’s motion for a “stay and abeyance” order is denied, without

prejudice; and

2. Petitioner shall show cause in writing, within 20 days of the date of this

order, why this action should not be dismissed for lack of prosecution and failure to comply with

court rules and orders.

DATED: December 4, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

Case 2:04-cv-00459-MCE-CMK Document 23 Filed 12/07/05 Page 3 of 3