Baltazar v. Santoro

          ORDER DENYING RESPONDENT’S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (DOC. 31)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         Petitioner Surgio Valencia Baltazar is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.^[1] Respondent Kelly Santoro, Warden of North Kern State Prison, Delano, California, moves to dismiss counts two through six of the amended petition as untimely. Having reviewed the record and applicable law, the Court concludes that counts two through six were timely and denies the motion to dismiss.

         I. Procedural and Factual Background

         In January 2009, Petitioner was tried in Merced County Superior Court on two counts of carjacking (Cal. Penal Code § 215), two counts of being a felon in possession of a firearm (Cal. Penal Code § 12021(a)(1)), and misdemeanor false identification to a police officer (Cal. Penal Code § 148.9(a)). The charges included potential sentence enhancement for personal use of a firearm (Cal. Penal Code § 12022.53(a)) with respect to the two carjacking counts. On January 15, 2009, a jury found Petitioner guilty of all counts and found both charged enhancements to be true.

         Following his convictions, Petitioner escaped from jail. As a result, he was not sentenced until May 9, 2011, when the court imposed sentences in four separate cases. Petitioner received an aggregate sentence of 22 years and four months.

         On May 9, 2011, Petitioner filed a timely notice of appeal. The California Court of Appeal affirmed on October 17, 2012. The California Supreme Court denied Petitioner’s motion for review on January 3, 2013.

         On September 16, 2013, Petitioner filed the above-captioned § 2254 petition. On October 17, 2013, the Court issued an order to show cause why the petition should not be dismissed for failure to exhaust state remedies as to claim 2 of the petition. On January 13, 2014, Petitioner filed a motion to stay claim 1, which was exhausted, and to withdraw claim 2, which was not exhausted. On March 12, 2014, the Court dismissed claim 2 and conditionally granted a stay of the petition pursuant to Kelly v. Small, 315 F.3d 1063 (9^th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9^th Cir. 2007).^[2] The Court found that Petitioner had satisfied the first two steps of the procedure prescribed in Kelly, but warned Petitioner that any claims to be exhausted in state court could be dismissed as untimely if they did not comply with the statute of limitations (28 U.S.C. § 2244(d)).

         On October 29, 2013, Petitioner gave a state habeas petition to prison staff for mailing to the Merced County Superior Court. When Petitioner heard nothing from the Superior Court by March 19, 2014, he filed a notice and request for ruling. See Cal. Rules of Court, Rule 4.551(a)(3)(B). The Superior Court did not respond.

         In the California Supreme Court on July 7, 2014, Petitioner filed a state habeas petition alleging five grounds not raised on direct appeal. The California Supreme Court summarily denied the habeas petition on September 17, 2014.

         On October 9, 2014, Petitioner filed the first amended petition in this court, consisting of the previously exhausted claim 1, and newly exhausted claims 2-5. On April 14, 2015, Respondent moved to dismiss claims 2-5 as untimely.

         II. Timeliness of Claims 2-5

         A. Stay and Abeyance Under Kelly

         Kelly sets forth a three-step stay and abeyance procedure under which “(1) the petitioner amends his petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the petitioner later amends his petition and re-attaches the newly exhausted claims to the original petition.” King v. Ryan, 564 F.3d 1133, 1135 (9^th Cir. 2009) (citing Kelly, 315 F.3d at 1070-71). The Kelly procedure is risky. “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. And demonstrating timeliness will often be problematic under the now-applicable legal principles.” King, 564 F.3d at 1140-41.

         Respondent contends that newly exhausted claims 2-5 are untimely and must be dismissed from the first amended petition. Petitioner contends that he filed the habeas petition including the claims in the Merced County Superior Court on or about October 28, 2013. After the Superior Court failed to rule on the notice and a subsequently filed a request for ruling, Petitioner filed his petition in the California ...