Michael Ramos v. James Yates

Opinion

FILED UNITED STATES COURT OF APPEALS APR 12 2010

MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS

MICHAEL PAUL RAMOS, No. 09-55031

Petitioner - Appellant, D.C. No. 3:05-cv-01712-MMA- JMA v. Southern District of California, San Diego JAMES A. YATES,

Respondent - Appellee. ORDER

Before: KLEINFELD, WARDLAW and CALLAHAN, Circuit Judges.

The memorandum disposition filed on February 17, 2010, is amended as

follows:

After the second paragraph, which ends on page 2, insert the following

paragraph:

Although we have held that equitable tolling may be

warranted in cases pending when Pace was decided, where

petitioners “relied in good faith on then-binding circuit precedent

in making his tactical decision to delay filing a federal habeas

petition,” Harris v. Carter, 515 F.3d 1051, 1053 (9th Cir. 2008), this is not such a case. See also Townsend v. Knowles, 562 F.3d

1200, 1206 (9th Cir. 2009). Unlike the petitioners in Harris and

Townsend, whose petitions became untimely the moment Pace

was decided, Ramos would have had 124 days after Pace became

binding law to file a “protective” petition in federal court. See

Pace, 544 U.S. at 417.

With this amendment, the panel has voted to deny the petition for rehearing.

The petition for rehearing is DENIED. No further petitions for rehearing or

rehearing en banc will be entertained.