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26 The two claims are: (2) the trial court erred in refusing to instruct the jury on the definition 1

of fear and the prosecution’s burden of proof on that element (claim two) and (5) the trial court erred

by instructing the jury for sentencing purposes that it could find petitioner tied or bound a victim if

it found petitioner either restricted her movement or deprived one or more of her senses (claim five).

(April 13, 2005 Findings and Recommendations at 3.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JOSE ALFREDO SOTO,

Petitioner, No. CIV S-04-2122 MCE PAN P

vs.

DARREL G. ADAMS, Warden,

Respondent. ORDER

 /

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. This court has found that petitioner has failed to present

his second or fifth claims to the California Supreme Court. (See April 13, 2005 Findings and 1

Recommendations at 3; June 2, 2005 Order.) 

On July 25, 2005, petitioner filed a motion for stay and an amended petition

raising only three claims and omitting claims two and five from the original petition. On

November 23, 2005, petitioner’s motion to stay was denied without prejudice to its refiling

because it appeared another inmate was filing a document on petitioner’s behalf in violation of

Local Rule 83-183(a). 

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 See <http:// appellatecases.courtinfo.ca.gov> (accessed July 26, 2006). 2

 Petitioner must demonstrate that (1) “there was good cause for petitioner's failure to 3

exhaust his claims in state court;” (2) the unexhausted claims are not “plainly meritless;” and (3)

“reasonable time limits are placed on a petitioner's trip to state court and back.” Id. at 1535. Because

a stay and abeyance has the potential to frustrate AEDPA's dual purposes of encouraging finality of

state court judgments and creating incentives for petitioners to seek relief in state court first, the

Supreme Court also stated that the “stay and abeyance should be available only in limited

circumstances.” Id. at 1534-35. 

2

Petitioner has now filed a motion to stay and a request for abeyance explaining

that he had sought the assistance of a fellow prisoner, Daniel J. Lang, who inadvertently referred

to himself in the first person, thus giving the court the impression that petitioner was being

represented by another inmate. Petitioner points out that Mr. Lang did not sign the documents

nor overtly attempt to represent petitioner. Good cause appearing, the court finds that petitioner

has ratified the statements contained in the July 25, 2005 motion to stay and would consider

those statements in ruling on the renewed motion to stay. 

However, in his amended petition, petitioner noted he was preparing a petition for

a writ of habeas corpus to exhaust two issues in the California Supreme Court. (Amended

Petition at 3.) The court has viewed the website for the California Supreme Court which states 2

petitioner filed his petition for writ of habeas corpus on August 31, 2005 but the petition was

resolved on June 14, 2006. A court may take judicial notice of court records. See MGIC Indem.

Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119

(9th Cir. 1980).

In light of this information, it appears petitioner may have exhausted his state

remedies and a stay may not be necessary. In an abundance of caution, petitioner’s motion to

stay will be denied without prejudice to its renewal. Petitioner is cautioned that should he renew

his motion to stay he must meet the requirements of Rhines v. Weber, 544 U.S. 269, 125 S.Ct.

1528 (2005).3

On the present record, it is not clear whether petitioner wishes to proceed on the

amended petition or whether he intends to seek leave to amend to include the claims exhausted in

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the August 31, 2005 petition. Accordingly, petitioner will be directed to notify the court, within

twenty days, whether he wishes to proceed on his July 25, 2005 amended petition raising only

three claims. If, however, petitioner intends to seek leave to file a second amended petition to

include claims exhausted in the August 31, 2005 petition before the California Supreme Court,

petitioner must file a motion to amend accompanied by a second amended petition. Petitioner is

cautioned that he may only include claims he has exhausted in state court. 

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Petitioner’s December 22, 2005 motion is denied without prejudice; and

2. Within thirty days from the date of this order, petitioner shall notify the court

he wishes to proceed on his July 25, 2005 amended petition, OR petitioner shall file a motion to

amend accompanied by a second amended petition.

DATED: August 17, 2006.

soto2122.stay

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