United States District Court, E.D. California
ORDER DENYING RESPONDENT’S MOTION TO DISMISS
PETITION FOR WRIT OF HABEAS CORPUS (DOC. 31)
K. OBERTO UNITED STATES MAGISTRATE JUDGE
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. 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.
Procedural and Factual Background
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.
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.
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.
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 (9th Cir. 2003), overruled on other
grounds by Robbins v. Carey, 481 F.3d 1143
(9th Cir. 2007). 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)).
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.
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.
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.
Timeliness of Claims 2-5
Stay and Abeyance Under 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 (9th 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.
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 ...