Opinion
2:20-cv-00200-TLN-CKD P
06-28-2021
LAURENCIO MARTINEZ QUINTERO, Petitioner, v. TAMMY FOSS, Respondent.
ORDER
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE
Petitioner is a stat e prisoner proceeding pro se and in forma pauperis in this habeas corpus proceeding filed pursuant to 28 U.S.C. § 2254. On March 22, 2021, the district court judge adopted the Findings and Recommendations issued on December 29, 2020, and dismissed petitioner's second amended habeas corpus application as a mixed petition. ECF No. 32. The case was remanded for further proceedings. ECF No. 32. Petitioner is directed to file a third amended petition containing only exhausted claims within 60 days from the date of this order. Petitioner may file a motion to stay these proceedings pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), if he is exhausting his state court remedies with respect to his ineffective assistance of counsel claims.
Petitioner's claims for relief based on the ineffective assistance of counsel raised as claims 7-13 in the second amended petition were summarily dismissed without prejudice.
See King v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009) (emphasizing that 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.”) (emphasis added); see also 28 U.S.C. § 2244(d)(1) (stating that a one year period of limitation shall apply to all federal habeas petitions challenging a state court judgment).
Accordingly, IT IS HEREBY ORDERED that petitioner file a third amended habeas corpus petition within 60 days from the date of this order.