Van Keyshone Rollen v. U.S.C.

Filing 4

ORDER DISMISSING ACTION WITHOUT PREJUDICE by Judge R. Gary Klausner. This action is DISMISSED without prejudice. For Petitioners convenience, the Clerk is directed to send him a blank Form CV-69 with a copy of this Order. (See Order for further details) Case Terminated. Made JS-6. (Attachments: # 1 CV-69) (vm)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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VAN KEYSHONE ROLLEN,
Petitioner,

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ORDER DISMISSING ACTION
WITHOUT PREJUDICE

v.

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Case No. ED CV 17-1503 RGK (MRW)

U.S.C.,
Respondent.

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The Court vacates the reference of this action to the Magistrate Judge and
dismisses Petitioner’s defective state habeas action.
***
Petitioner, an inmate at the state prison in Susanville, filed a motion “for

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extension of time.” (Docket # 1.) He does not have an active case on file in this

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district, but the remainder of the filing suggests that he wishes to file a habeas

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action in this Court following the conclusion of state court proceedings.

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The Court construes the motion as an attempt to extend the deadline to file a
future habeas petition challenging his state court criminal conviction. This

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procedure does not comply with the rules of this Court, so Petitioner’s action must

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be dismissed.

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***
Petitioner has not filed an actual habeas petition, nor has he filed any other

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materials with this Court in connection with his case. According to the motion,

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Petitioner is waiting for transcripts from his underlying criminal case before

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commencing a habeas action. Petitioner’s motion is not accompanied by any

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information regarding his criminal case or the claims of error he wishes to assert

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on habeas review.

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As a result, Petitioner failed to comply with the Rules Governing Section

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2254 Cases in the United States District Courts. Rule 2(d) expressly requires that a

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state prisoner commence a habeas action by using a standard form prepared by the

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Court. In our district, prisoners must complete Form CV-69. That form provides

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the Court with basic information about the petitioner, his conviction, the prior

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status of his case in state and federal court, and, most importantly, the federal

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constitutional claims he wishes to pursue here.

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A state prisoner must begin his case by filing a petition for a writ of habeas

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corpus. Petitioner’s request for an extension to file his federal habeas petition – in

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the absence of a properly filed petition – is inadequate and premature. If he files

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an action after the statutory deadline, Petitioner may be entitled to request

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equitable tolling of the limitations period.1 However, at this stage, the Court

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cannot extend the habeas filing period as Petitioner requests.

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The Court observes that a state prisoner generally has a one-year
period after a conviction becomes final (generally, after the conclusion of all
appellate proceedings) to commence an action for federal habeas review.
28 U.S.C. § 2244. In California, when a prisoner does not seek certiorari review of
a conviction in the U.S. Supreme Court, a prisoner’s conviction generally becomes
final 90 days after the state supreme court denies a petition for review. Shannon v.
Newland, 410 F.3d 1083, 1086 (9th Cir. 2005).

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Therefore, this action is DISMISSED without prejudice. For Petitioner’s

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convenience, the Clerk is directed to send him a blank Form CV-69 with a copy of

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this Order.

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IT IS SO ORDERED.

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Dated: August 03, 2017

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___________________________________
HON. R. GARY KLAUSNER
UNITED STATES DISTRICT JUDGE

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Presented by:

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____________________________________
HON. MICHAEL R. WILNER
UNITED STATES MAGISTRATE JUDGE

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