King v. Ryan et al

Filing 3

ORDER denying without prejudice 1 Petitioner's Motion to Request Extension of Time to File Petition under 28 U.S.C. § 2254. This matter is dismissed without prejudice for lack of jurisdiction and the Clerk must enter judgment accordingly. Signed by Judge G Murray Snow on 9/8/11.(LSP)

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WO

MDR

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John H. King, II,
Petitioner,

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vs.

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Charles Ryan, et al.,
Respondents.

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No. CV 11-1757-PHX-GMS (LOA)
ORDER

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On September 6, 2011, Petitioner John H. King, II, who is confined in the Arizona

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State Prison Complex-Tucson in Tucson, Arizona, filed a“Motion to Request for Extension

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of Time to File Petition under 28 U.S.C. § 2254.” Petitioner requests that the Court grant

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him an additional 90 days within which to file his habeas corpus petition because of

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“extenuating circumstance[s] beyond [his] control.” He claims he has been moved from one

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prison to another, that “important case law” were misplaced during the moving process, and

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that he has been on institutional lockdown for several days and has not had access to the

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library.

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Petitioner’s “Motion to Request for Extension of Time” is not accompanied by a

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petition for writ of habeas corpus. The Court is not able to construe Petitioner’s “Motion to

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Request for Extension of Time” as a petition for writ of habeas corpus because the “Motion

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to Request for Extension of Time” is not accompanied by the statutory filing fee or an

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application to proceed in forma pauperis, is not filed on the court-approved form for filing

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a petition for writ of habeas corpus, does not specify any grounds for habeas corpus relief,

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does not set forth any facts supporting any grounds, and does not specify the habeas relief

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requested. See Rule 2(c) of the Rules Governing Section 2254 Cases in the United States

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District Courts. Also, Petitioner’s “Motion to Request for Extension of Time” does not

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provide any information about Petitioner’s conviction, such as the crime(s) for which he was

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convicted, the date of his conviction, or when his judgment of conviction was final.

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Essentially, Petitioner is seeking an advisory opinion from this Court regarding the

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application of the time limits imposed by 28 U.S.C. § 2244(d)(1), which provides in part that

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“[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by

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a person in custody pursuant to the judgment of a State court.” However, a federal court

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may not issue advisory opinions. See United States v. Cook, 795 F.2d 987, 994 (Fed. Cir.

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1986) (district court erred in tolling statute of limitations as to future claims by persons not

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party to the case before the court). Accordingly, the Court lacks jurisdiction to entertain

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Petitioner’s “Motion to Request for Extension.” The Court will therefore deny without

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prejudice the “Motion to Request for Extension of Time” and will dismiss without prejudice

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this case.

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Because this matter is being dismissed without prejudice, Petitioner is in no way

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prevented by this Order from filing a petition for writ of habeas corpus in this Court. Any

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future petition filed by Petitioner should: (1) name Petitioner’s current custodian as a

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respondent, (2) show how Petitioner is being held in custody in violation of the Constitution,

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laws, or treaties of the United States, (3) specify all the exhausted grounds for relief available

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to Petitioner, (4) set forth in summary form the facts supporting each of his grounds, and

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(5) provide information as to how Petitioner has first exhausted his state court remedies as

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to each ground on which he requests action by this Court. Petitioner must also use the court-

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approved form. See Local Rule of Civil Procedure 3.5(a) (habeas petitioners must use the

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court-approved form when filing a pro se petition pursuant to 28 U.S.C. § 2254).

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In the event that the respondent in any future habeas action instituted by Petitioner

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raises the 1-year period of limitation in 28 U.S.C. § 2254(d) as an affirmative defense,
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Petitioner will be free to argue that his petition is subject to equitable tolling. See Corjasso

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v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002) (Section 2244(d) is subject to equitable tolling

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based on a showing that “exceptional circumstances” beyond the prisoner’s control made it

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impossible to file his petition on time).

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IT IS ORDERED:

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(1)

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Petitioner’s “Motion to Request for Extension of Time to File Petition under

28 U.S.C. § 2254” (Doc. 1) is denied without prejudice.
(2)

This matter is dismissed without prejudice for lack of jurisdiction and the

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Clerk of Court must enter judgment accordingly.

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DATED this 8th day of September, 2011.

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