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 Extensions of time were granted by orders filed on November 10, 2004, January 7, 2005,

February 1, 2005 and June 7, 2005.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ROBERT RAMESES

Petitioner, No. CIV S-04-1173 GEB GGH P

vs.

GARY LACEY, et al., 

Respondents. ORDER

 /

A joint scheduling statement in this matter was filed on July 6, 2005, pursuant to

the court’s order filed October 4, 2004.1 Petitioner contends that the sole claim set forth in the

original petition, that petitioner’s rights under the Fifth and Fourteenth Amendments were

violated when the prosecution made “derivative use” of petitioner’s convictions that were

protected by the Fifth Amendment’s privilege against self-incrimination, is exhausted, a

contention with which respondent is apparently in dispute. Petitioner identifies four claims

raised by petitioner in a pro se habeas petition in the state supreme court that is still pending: (1)

the Fifth Amendment prohibits use of compelled immunized testimony in subsequent criminal

prosecutions; (2) petitioner was denied his Sixth Amendment right to counsel when officials

violated his absolute privacy with communications between himself and his attorneys; (3) trial

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court violated petitioner’s due process rights when the court allowed the prosecution to use a

constitutionally invalid prior conviction from Dade County in violation of his Boykin-Tahl rights

when petitioner never waived his right to a jury trial on the priors in Dade County; (4) trial court

violated petitioner’s due process rights as guaranteed by the Fourteenth Amendment when it

denied him a fair trial by forcing petitioner to wear a stun-belt during his court proceedings.

Petitioner’s counsel intends to incorporate some or all of the claims being

exhausted in state court. Petitioner also adds that he intends to bring additional, but unidentified,

claims in a supplement to the pending state court petition thirty days after the filing of this July 6,

2005 joint statement, which means that he should have filed any such supplement by August 5,

2005. Respondent does not object to this petition being held in abeyance but does not thereby

waive a statute of limitations defense in the future. 

There is threshold issue that must be resolved before this court can determine

whether a stay and abeyance should be recommended in this matter. Respondent does not

concede that the only claim in the pending original petition is exhausted. While the United

States Supreme Court has recently made clear that “stay and abeyance should be available only in

limited circumstances,” Rhines v. Weber, ___ U.S. ___, 125 S. Ct. 1528, 1535 (2005), this court

does have the authority to hold exhausted petitions in abeyance while petitioner returns to state

court to exhaust new claims. Calderon v. U.S.D.C. (Taylor), 134 F.3d 981 (9th Cir. 1998). 

However, the court cannot entertain an application for a stay and abeyance of a petition

containing only an unexhausted claim. 

Accordingly, IT IS ORDERED that:

1. Within thirty days, respondent must EITHER file a motion to dismiss the

petition for failure to exhaust state court remedies as to the sole claim of the petition OR file an

explicit waiver of any challenge to the petition on grounds of nonexhaustion as to the only claim

therein;

\\\\\

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2. Should respondent file a motion to dismiss for failure to exhaust state court

remedies as to the petition’s only claim; petitioner must file his opposition within thirty days

thereafter; respondent must file any reply within seven days of the filing of the opposition;

3. Once the question of exhaustion of the original claim has been resolved, the

court will proceed with further orders based on the joint scheduling statement and/or subsequent

filings, as appropriate. 

DATED: 8/11/05

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

GGH:009

rame1173.pst

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