                                                                               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.




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