Davis v. Ryan

Filing 8

ORDER the 1 "Notice of Intent to File Petition" and this action are dismissed without prejudice; the Clerk of Court must enter judgment accordingly. Petitioner's request for appointment of counsel is denied without prejudice. Petitio ner's 3 Application to Proceed In Forma Pauperis is denied as moot. Petitioner's 5 Motion for Clarification and Statutory Tolling is denied. Signed by Judge G Murray Snow on 11/28/11. (Attachments: # 1 2254 Form, # 2 IFP Habeas Form) (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carl Dwight Davis,
Petitioner,

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vs.

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Charles L. Ryan,
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Respondent.
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No. CV 11-2110-PHX-GMS (MHB)
ORDER

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Petitioner Carl Dwight Davis, who is confined in the Arizona State Prison Complex-

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Eyman, has filed a “Notice of Intent to File Petition for Issuance of a Writ of Habeas Corpus

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and a Request for Assistance” (Doc. 1), an Application to Proceed In Forma Pauperis

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(Doc. 3), and a Motion for Clarification and Statutory Tolling (Doc. 5), and has requested

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the appointment of counsel. The Court will dismiss this action and deny the pending motions

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as moot.

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Petitioner asks that the Court clarify when the statute of limitations for filing a petition

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for habeas corpus begins to run and requests that the Court toll the statute of limitations.

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Petitioner’s Notice is not accompanied by a petition for writ of habeas corpus. The Court is

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not able to construe Petitioner’s Motion as a petition for writ of habeas corpus because it is

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not filed on the court-approved form and does not set forth any facts supporting Petitioner’s

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request for habeas relief. See Rule 2(c) of the Rules Governing Section 2254 Cases in the

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United States District Courts. Also, Petitioner’s Notice does not provide any information

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about Petitioner’s conviction, such as the crime(s) for which he was convicted, the date of

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his conviction, or when his judgment of conviction was final. Without a proper Petition

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before it, the Court can take no action on Petitioner’s requests and will therefore dismiss this

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action without prejudice.

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With respect to Petitioner’s Motion for Clarification and Tolling, Petitioner is

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essentially seeking an advisory opinion from this Court regarding the application of the time

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limits imposed by 28 U.S.C. § 2244(d)(1), which provides in part that “[a] 1-year period of

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limitation shall apply to an application for a writ of habeas corpus by a person in custody

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pursuant to the judgment of a State court.” However, a federal court may not issue advisory

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opinions. See United States v. Cook, 795 F.2d 987, 994 (Fed. Cir. 1986) (district court erred

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in tolling statute of limitations as to future claims by persons not party to the case before the

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court). The Court will therefore deny Petitioner’s Motion.

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With respect to Petitioner’s request for appointment of counsel, “[i]ndigent state

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prisoners applying for habeas corpus relief are not entitled to appointed counsel unless the

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circumstances of a particular case indicate that appointed counsel is necessary to prevent due

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process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). However, the

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Court has discretion to appoint counsel when “the interests of justice so require.” 18 U.S.C.

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§ 3006A(a)(2)(B).

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There is presently no Petition pending before the Court and Petitioner has not made

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the necessary showing for appointment of counsel at this time. The Court will therefore deny

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without prejudice Petitioner’s request for appointment of counsel.

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Petitioner is not precluded from filing a § 2254 petition in a new case in the future.

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Any 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 (5)

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provide information as to how Petitioner has first exhausted his state court remedies as to
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each ground on which he requests action by this Court. Petitioner must also use the court-

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approved form for each ground in the petition. See Local Rule of Civil Procedure 3.5(a)

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(habeas petitioners must use the court-approved form when filing a pro se petition pursuant

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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).

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IT IS ORDERED:

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(1)

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The “Notice of Intent to File Petition” (Doc. 1) and this action are dismissed

without prejudice; the Clerk of Court must enter judgment accordingly.

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(2)

Petitioner’s request for appointment of counsel is denied without prejudice.

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(3)

Petitioner’s Application to Proceed In Forma Pauperis (Doc. 3) is denied as

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(4)

Petitioner’s Motion for Clarification and Statutory Tolling (Doc. 5) is denied.

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(5)

The Clerk of Court must provide Petitioner with the current court-approved

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moot.

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forms for filing a “Petition For Writ Of Habeas Corpus By A Person In State Custody

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Pursuant to 28 U.S.C. § 2254 (Non-Death Penalty)” and an “Application to Proceed In

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Forma Pauperis by a Prisoner (Habeas).”

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DATED this 28th day of November, 2011.

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