(HC) Quintero v. Foss ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAURENCIO MARTINEZ QUINTERO, No. 2:20-cv-00200-TLN-CKD P 12 Petitioner, 13 v. ORDER 14 TAMMY FOSS, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis in this habeas corpus 18 proceeding filed pursuant to 28 U.S.C. § 2254. On March 22, 2021, the district court judge 19 adopted the Findings and Recommendations issued on December 29, 2020, and dismissed 20 petitioner’s second amended habeas corpus application as a mixed petition.1 ECF No. 32. The 21 case was remanded for further proceedings. ECF No. 32. Petitioner is directed to file a third 22 amended petition containing only exhausted claims within 60 days from the date of this order. 23 Petitioner may file a motion to stay these proceedings pursuant to Kelly v. Small, 315 F.3d 1063 24 (9th Cir. 2003), if he is exhausting his state court remedies with respect to his ineffective 25 assistance of counsel claims.2 26 1 Petitioner’s claims for relief based on the ineffective assistance of counsel raised as claims 7-13 27 in the second amended petition were summarily dismissed without prejudice. 28 2 See King v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009) (emphasizing that a “petitioner ] Accordingly, IT IS HEREBY ORDERED that petitioner file a third amended habeas 2 || corpus petition within 60 days from the date of this order. 3 || Dated: June 28, 2021 AdAL Ltd MN fe Ho. AG 4 CAROLYN K. DELANEY 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12/quin0200.reset.docx 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 || 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. 27 || And demonstrating timeliness will often be problematic under the now-applicable legal principles.”) (emphasis added); see also 28 U.S.C. § 2244(d)(1) (stating that a one year period of 28 | limitation shall apply to all federal habeas petitions challenging a state court judgment).