Carlos Ramirez v. David B. Long

Filing 25

AMENDED MINUTE Order Granting Request for Stay AndAbeyance Pursuant to Kelly v. Small by Magistrate Judge Kenly Kiya Kato: 1. Petitioner's notice of voluntary dismissal is hereby accepted by the court and GRANTED. Accordingly, the second prong of Claim One which alleges the evidence was insufficient to prove Petitioner committed the shooting that formed the basis for his underlying conviction is dismissed without prejudice. 2. Petitioners request for a Kelly stay is GRANTED. This action -- now containing only the exhausted grounds -- is hereby stayed pending exhaustion of petitioners state court remedies on other grounds and/or further order of this Court. 4. Beginning on January 27, 2015, and continuing every 90 days thereafter, pet itioner shall file a Status Report with the Court, addressing the status of petitioner's state habeas petition, including the date on which it was filed, the court in which it is pending, the case number, and any recent activity. Respondent m ay file a status report within fourteen days following petitioners filings, if respondent wishes to advise the Court of any developments not reported by petitioner. 5. Within 30 days after any decision by the California Supreme Court on petitioners habeas petition, petitioner shall advise this Court of the decision. Further, should petitioner abandon his efforts to exhaust his state court remedies on other grounds, he shall immediately advise this Court. 6. Petitioner is cautioned that if he f ails to act diligently in seeking to exhaust his state court remedies or fails to act within the time frames discussed above, the Court may vacate the stay and prohibit petitioner from raising any new claims in this action.granting 24 Request for Reconsideration (dts)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-2008-JVS (KK)

Title

Carlos Ramirez v. David B. Long, Warden

Present: The
Honorable

Date

September 29, 2014

Kenly Kiya Kato, United States Magistrate Judge

Deb Taylor

n/a

n/a

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

n/a

n/a

Proceedings:

(In Chambers) AMENDED Order Granting Request for Stay And
Abeyance Pursuant to Kelly v. Small

Pursuant to Respondent's request for clarification of this Court's October 28, 2014
Order (ECF 24), the Court issues the following amended order:
On March 10, 2014, Petitioner Carlos Ramirez, proceeding pro se, filed a Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254. ("Petition"). On July 14,
2014, Respondent filed a Motion to Dismiss. On August 6, 2014, this Court issued an
Order granting in part and denying in part Respondent's Motion to Dismiss. The Court
concluded that the Petition was a "mixed" petition subject to dismissal and advised
Petitioner of his options.
On August 21, 2014, Petitioner filed a Motion for Stay and Abeyance. Petitioner
conceded the Petition contains claims which are unexhausted, but requested a stay and
abeyance pursuant to Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528 (2005). (Pet. at
10).
On August 27, 2014, this Court denied Petitioner's request for a Rhines stay. The
Court further advised Petitioner of his options to (1) request a voluntary dismissal of this
action without prejudice; (2) request a voluntary dismissal of only the unexhausted
claims, and elect to proceed on only his exhausted claims; or (3) dismiss his unexhausted
claims and ask the court to stay his remaining, fully exhausted claims while he returns to
the state courts to exhaust his dismissed claims pursuant to Kelly v. Small, 315 F.3d 1063,
1070-71 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143
(9th Cir. 2007).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-2008-JVS (KK)

Date

Title

September 29, 2014

Carlos Ramirez v. David B. Long, Warden

On September 12, 2014, Petitioner filed a response to the August 27, 2014 Order in
which he stated he wished to "accept OPTION 3," and "[t]o use the 'Kelly Procedure.'"
(Dkt. 19). Petitioner further advised he wished to delete his unexhausted claims and stay
his exhausted claims while he returns to state court to exhaust his dismissed, unexhausted
claims. However, it was unclear which claims Petitioner was agreeing should be
dismissed. Accordingly, on September 29, 2014, this Court issued an order directing
further response from Petitioner.
On October 10, 2014, Petitioner filed a response and Notice of Dismissal.
Petitioner seeks to dismiss the second prong of Claim One which alleges the evidence
was insufficient to prove Petitioner committed the shooting that formed the basis for his
underlying conviction and the entirety of Claim Two which alleges Petitioner's right's to
due process and a fair trial were violated by improper questions by the D.A.. See ECF
22.
Petitioner's motion to dismiss the second prong of Claim One is GRANTED.
Additionally, the Court has carefully reviewed the record and petitioner’s written
submissions, and the Court finds that a Kelly stay is warranted here. There is no
indication of an intent on the part of petitioner in seeking a Kelly stay to delay or harass.
See Lugo v. Kirkland, 2006 WL 449130, at *2 (N.D. Cal. Feb. 22, 2006). Moreover, a
stay appears appropriate here because it will circumvent piecemeal litigation and “valid
claims would otherwise be forfeited.” Id. (internal quotation marks and citation omitted).
Petitioner is advised, however, that although a Kelly stay does not require a
showing of good cause, it obligates compliance with the one-year statute of limitations
set forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
§ 2244(d)(1). “A petitioner seeking to use the Kelly procedure will be able to amend his
unexhausted claims back into his federal petition once he has exhausted them only if
those claims are determined to be timely.” King v. Ryan, 564 F.3d 1133, 1140 (9th Cir.
2009). After the expiration of the limitation period, “a petitioner may amend a new claim
into a pending federal habeas petition . . . only if the new claim shares a ‘common core of
operative facts’ with the claims in the pending petition; a new claim does not ‘relate
back’ . . . simply because it arises from the ‘same trial, conviction, or sentence.’” Id. at
1141 (internal citation omitted).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-2008-JVS (KK)

Date

Title

September 29, 2014

Carlos Ramirez v. David B. Long, Warden

Although petitioner filed the instant federal habeas petition on March 10, 2014, a
habeas petition pending in federal court – as opposed to state court – does not toll the
statute of limitations. See Duncan v. Walker, 533 U.S. 167, 181-82, 121 S. Ct. 2120, 150
L. Ed. 2d 251 (2001). The Court may therefore ultimately find any newly asserted or
reasserted claim(s) in an amended petition to be time-barred.
In light of the foregoing, it is hereby ORDERED as follows:
1.

Petitioner's notice of voluntary dismissal is hereby accepted by the court and
GRANTED. Accordingly, the second prong of Claim One which alleges the
evidence was insufficient to prove Petitioner committed the shooting that
formed the basis for his underlying conviction is dismissed without
prejudice.

2.

Petitioner’s request for a Kelly stay is GRANTED. This action -- now
containing only the exhausted grounds -- is hereby stayed pending
exhaustion of petitioner’s state court remedies on other grounds and/or
further order of this Court.

4.

Beginning on January 27, 2015, and continuing every 90 days thereafter,
petitioner shall file a “Status Report” with the Court, addressing the status of
petitioner's state habeas petition, including the date on which it was filed, the
court in which it is pending, the case number, and any recent activity.
Respondent may file a status report within fourteen days following
petitioner’s filings, if respondent wishes to advise the Court of any
developments not reported by petitioner.

5.

Within 30 days after any decision by the California Supreme Court on
petitioner’s habeas petition, petitioner shall advise this Court of the decision.
Further, should petitioner abandon his efforts to exhaust his state court
remedies on other grounds, he shall immediately advise this Court.

6.

Petitioner is cautioned that if he fails to act diligently in seeking to exhaust
his state court remedies or fails to act within the time frames discussed
above, the Court may vacate the stay and prohibit petitioner from raising any
new claims in this action.

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