Anthony

ORDER DENYING MOTION TO FILE AMENDED PETITION AND REINSTATING ORDER TO SHOW CAUSE

Petitioner first filed a federal petition for a writ of habeas corpus on April 23, 1997. Because the petition contained both exhausted and unexhausted claims (only one of six claims was exhausted), it was dismissed without prejudice. See Anthony v. Cambra, No. C 97-1474 FMS (PR) (N.D.Cal. May 22, 1997) (order of dismissal). Petitioner then filed another petition on June 13, 1997 containing only his one exhausted claim. The court construed the petition as an amendment deleting the unexhausted claims and granted petitioner’s motion to stay the petition to allow him an opportunity to exhaust his other five claims. Upon exhaustion of those claims, petitioner could move to further amend the petition to add the newly-exhausted claims. Petitioner accordingly exhausted his additional claims and now moves to file an amended petition adding to the stayed petition his newly-exhausted claims. Respondent opposes the motion arguing that the proposed amended petition would constitute an abuse of the writ.

In Calderon v. United States Dist. Court (Taylor), 134 F.3d 981 , 986-88 (9th Cir.1998), the court of appeals…