Carlos Ramirez v. David B. Long

Filing 27

MINUTES (IN CHAMBERS): ORDER by Magistrate Judge Kenly Kiya Kato: Re Respondent's Request for Clarification of theCourt's October 29, 2014 Order (SEE DOCUMENT FOR DETAILS) 26 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

November 3, 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) Order Re Respondent's Request for Clarification of the
Court's October 29, 2014 Order

Pursuant to Respondent's request for clarification of this Court's October 29, 2014
Orders (ECF 26), the Court order as follows:
Petitioner's request to voluntarily 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. 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. Petitioner's
remaining claim is, therefore, stayed pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir.
2002).
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
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 3

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

CV 14-2008-JVS (KK)

Date

Title

November 3, 2014

Carlos Ramirez v. David B. Long, Warden

back’ . . . simply because it arises from the ‘same trial, conviction, or sentence.’” Id. at
1141 (internal citation omitted).
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 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. are 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.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 2 of 3

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

6.

CV-90 (06/04)

Date

November 3, 2014

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.

CIVIL MINUTES - GENERAL

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