On May 8, 2007, the Court granted Petitioner's request for stay and abeyance. (Court Doc. 4.) Pursuant to that order, Petitioner was directed to file an initial status report within thirty (30) days from the date of service, and every ninety (90) days thereafter. (Id.)
Petitioner filed an initial status report on June 2, 2007, and further status reports on November 1, 2007, February 1, 2008, and May 10, 2008. (Court Docs. 5, 8, 10, 11.) However, Petitioner failed to file a further status report ninety days thereafter. Accordingly, on August 25, 2008, the Court issued an order to show cause why the stay and abeyance should not be vacated and sanctions imposed for the failure to comply with the Court's order. (Court Doc. 12.) Petitioner filed a response on August 26, 2008. (Court Doc. 13.) Counsel declares that the petition for writ of habeas corpus filed in the California Supreme Court on April 28, 2008, remains pending. Counsel further declares that he "undertook in his November 2007 pleading to file status reports at the 90 day intervals ordered by this Court on February 1, May 1, and August 1, 2008. The August 1, 2008 filing was delayed by unanticipated circumstances, primarily an evidentiary hearing in Tulare County . . ." and working to meet various other deadlines. (Response, at 2.) Counsel states that "[t]he status report in this case has been on counsel's calender and on the to-do list, but it is late and counsel again apologizes." (Response, at 3.)
Based on counsel's representations in his declaration that the failure to file a status report was the result of an unusually heavy workload, the Court will vacate the order to show cause and continue the stay entered May 8, 2007.