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),

2

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.