Evan Freeman v. The People

Filing 3

MEMORANDUM AND ORDER DENYING EXTENSION MOTION AND SUMMARILY DISMISSING ACTION by Judge Dean D. Pregerson 1 . IT IS THEREFORE ORDERED that petitioners motion for extension of time to file a habeas corpus petition is DENIED, and that Judgment be entered summarily dismissing this action without prejudice. (Made JS-6. Case Terminated.) (twdb)

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JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EVAN FREEMAN,

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Petitioner,

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v.

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THE PEOPLE,

Case No. 2:18-CV-4823 DDP(SHK)
MEMORANDUM AND ORDER
DENYING EXTENSION MOTION
AND SUMMARILY DISMISSING
ACTION

Respondent.

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On May 21, 2018, 1 “petitioner” Evan Freeman, who has not actually yet filed

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a petition in this Court, filed a document title “‘Belated’ Notice Of Motion For An

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Extension Of Time To File A Petition For Writ Of Habeas Corpus.” Electronic

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Case Filing Number (“ECF No.”) 1, Motion at 1. Petitioner is a California state

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prisoner, who indicates that his California state habeas petition was denied on May

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10, 2017 by the California Supreme Court, and requests “60 additional days instead

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of the normal 30 days to allow him to finish handwriting, copying, and mailing of

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his petition. Id. at 3.

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Pursuant to the prisoner “mailbox rule,” “the court deems the petition constructively ‘filed’
on the date it is signed.” Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); see Houston
v. Lack, 487 U.S. 266, 275-76, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988).

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Though unclear, it appears that petitioner is seeking an enlargement of his

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time under the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) one-

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year statute of limitations to file a federal habeas petition under 28 U.S.C. § 2254.

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The relief petitioner requests, however, cannot be granted.

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Under the “case or controversy” requirement of Article III, Section 2 of the

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United States Constitution, federal courts may not issue advisory opinions. See

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Flast v. Cohen, 392 U.S. 83, 96, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). Because

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petitioner has not actually filed a federal habeas petition challenging his conviction

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or sentence, there is no case or controversy properly before this Court. This Court

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therefore lacks jurisdiction to grant a motion to extend petitioner’s time to file a

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federal habeas petition or to otherwise decide the timeliness of some such potential

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future petition. See U.S. v. Leon, 203 F.3d 162, 164 (2d Cir. 2000) (“a federal

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court lacks jurisdiction to consider the timeliness of a § 2255 petition until a

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petition is actually filed”); McDade v. Warden, 2010 WL 4795377, at *1 (C.D. Cal.

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2010) (no jurisdiction to decide timeliness or entitlement to equitable tolling in

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advance of filing of § 2254 petition); see also Calderon v. Ashmus, 523 U.S. 740,

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746-49, 118 S. Ct. 1694, 140 L. Ed. 2d 970 (1998) (no “case or controversy” where

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prisoners sought declaratory relief to determine the time limits that would govern

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future habeas actions); U.S. v. Cook, 795 F.2d 987, 994 (Fed. Cir. 1986) (district

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court erred by tolling statute of limitations in advance of the filing of potentially

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untimely claims).

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Petitioner should be aware that under United States Supreme Court Rule 13,

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a Petitioner has ninety days from entry of a final judgment in a state court’s highest

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court, to file a petition for writ of certiorari with the United States Supreme Court.

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Under 28 U.S.C. § 2244(d)(1)(A), a petitioner’s conviction becomes final after that

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90 day time period and a federal habeas petition is timely if it is filed within one

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year after that date.

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In this matter, if and when petitioner files a habeas petition in this Court, and

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if the timeliness of that petition is questioned, this Court can consider whether

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petitioner is entitled to statutory tolling under 28 U.S.C. § 2244(d)(2) or to

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equitable tolling. But those are matters that cannot be decided at this juncture.

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IT IS THEREFORE ORDERED that petitioner’s motion for extension of time

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to file a habeas corpus petition is DENIED, and that Judgment be entered summarily

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dismissing this action without prejudice.

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DATED: June 15, 2018
_____________________________
HON. DEAN D. PREGERSON
UNITED STATES DISTRICT JUDGE

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Presented by:

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______________________________
SHASHI H. KEWALRAMANI
UNITED STATES MAGISTRATE JUDGE

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