Pacheco A. Joseph v. The People of the State of California

Filing 3

ORDER OF DISMISSAL by Judge John A. Kronstadt. IT IS ORDERED that the Motion 1 be dismissed without prejudice.. Case Terminated. Made JS-6. (afe)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION

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12 PACHECO. A. JOSEPH,
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Petitioner,

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v.
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THE PEOPLE OF THE STATE OF
16 CALIFORNIA,
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Respondent.

) Case No. CV 16-07921-JAK (AS)
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) ORDER OF DISMISSAL
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BACKGROUND
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On October 25, 2016, pro se Petitioner, Joseph A. Pacheco,
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currently

located

at

Centinela

State

Prison

in

Imperial,

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California, filed a two-page motion for an extension of time to
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file a petition for writ of habeas corpus by a person in state
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1 custody pursuant to 28 U.S.C. § 2254 (“Motion”).1

Petitioner

2 contends that the statute of limitations is set to expire on
3 October 21, 2016, and that he needs 60 days of additional time,
4 until December 20, 2016, to file his federal habeas petition.
5 (Docket Entry No. 1).
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A Petition for Writ of Habeas Corpus can only be issued if

8 Petitioner is in state custody and such custody is in violation
9 of the Constitution, laws or treaties of the United States.
10 U.S.C.

§ 2254(c).

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However, Petitioner does not identify or

11 allege any claims that he intends to raise in any petition filed
12 in this Court.

Thus, the Court is unable to determine whether

13 Petitioner intends to raise claims that are even cognizable on
14 federal habeas review and whether Petitioner might be entitled to
15 statutory tolling and/or equitable tolling of the AEDPA statute
16 of limitations.2
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1

According to the attached Proof of Service by Mail,
Petitioner handed the Motion to prison authorities for mailing on
October 13, 2016.
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Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), state prisoners have a one-year period within
which they must seek federal habeas review of their habeas
claims.
28 U.S.C. §2244(d)(1).
Although Petitioner contends
that the statute of limitations to file a federal habeas petition
expires on October 21, 2016, the Court notes that, according to
the
California
courts’
database
(see
http://appellatecases.courtinfo.ca.gov), the California Supreme
Court denied Petitioner’s Petition for Review on October 21, 2015
(Case No. S228219). Thus, pursuant to 28 U.S.C. § 2244(d)(1)(A)
and United States Supreme Court Rule 13.1, Petitioner’s
conviction became final on January 19, 2016.
Therefore, the
AEDPA limitations period began to run on January 20, 2016 (the
day after the time for seeking review of the California Supreme
Court’s denial of his Petition for Review expired) and, absent
tolling, Petitioner will be required to file a federal habeas
petition no later than January 19, 2017, pursuant to 28 U.S.C. §
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Petitioner’s motion for an extension of time in an attempt

2 to bypass the statute of limitations hurdle (see McQuiggin v.
3 Perkins, 133 S.Ct. 1924, 1928 (2013)), must be denied because the
4 Court has no basis for determining whether an extension of time
5 and/or statutory or equitable tolling would be appropriate.

See

6 Pace v. Diguglielmo, 544 U.S. 408, 416 (2005)(state petitioner may
7 file “protective” federal habeas petition in federal court and
8 request a stay and abey of federal habeas proceedings in order to
9 exhaust state remedies).
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Since Petitioner has not filed a federal habeas petition

12 stating a claim for relief under 28 U.S.C. § 2254, denial of the
13 Motion is warranted.
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ORDER

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ACCORDINGLY, IT IS ORDERED that the Motion be dismissed

18 without prejudice.3
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20 DATED: November 14, 2016
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JOHN A. KRONSTADT
UNITED STATES DISTRICT JUDGE

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2244(d)(1).
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Petitioner may assert any argument for statutory and/or
equitable tolling in any federal habeas petition he chooses to
file, if necessary.
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