Steven DeSisto v. T. Lemon

Filing 3

ORDER SUMMARILY DISMISSING ACTION WITHOUT PREJUDICE by Judge Fernando M. Olguin. IT IS ORDERED THAT: (1) the Petition is dismissed without prejudice; and (2) a certificate of appealability is denied. (See document for further details.) Case Terminated. Made JS-6. (sbou)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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STEVEN DESISTO,

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Petitioner,

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v.
T. LEMON,

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Respondent.

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Case No. EDCV 18-0537-FMO (JEM)
ORDER SUMMARILY DISMISSING
ACTION WITHOUT PREJUDICE

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On March 16, 2018, Steven DeSisto (“Petitioner”), a prisoner in state custody

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proceeding pro se, filed a request for an extension of time to file a petition for writ of habeas

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corpus (“Request”). It appears that Petitioner seeks this extension to avoid the one-year

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statute of limitations set forth in 28 U.S.C. § 2244(d)(1). Petitioner states that he did not

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receive notice of the California Supreme Court’s denial of his petition for review for several

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months and, therefore, he is entitled to equitable tolling of the statute of limitations and he

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needs additional time to prepare his federal habeas petition. Petitioner does not give any

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information regarding the nature of his habeas claims.

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For the reasons set forth below, the Request is denied and this matter is dismissed
without prejudice.

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DISCUSSION
I.

Duty to Screen

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This Court has a duty to screen habeas corpus petitions. See Rules Governing §

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2254 Cases in the United States District Courts, Rule 4 Advisory Committee Notes. Rule 4

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requires a district court to examine a habeas corpus petition, and if it plainly appears from

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the face of the petition and any annexed exhibits that the petitioner is not entitled to relief,

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the judge shall make an order for summary dismissal of the petition. Id.; see also Local

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Rule 72-3.2.

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II.

The Court Lacks Jurisdiction Over This Matter

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“‘The exercise of judicial power under Art. III of the Constitution depends on the

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existence of a case or controversy,’ and ‘a federal court [lacks] the power to render advisory

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opinions.’” U.S. Nat’l Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S.

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439, 446 (1993) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)); see also Flast v.

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Cohen, 392 U.S. 83, 94 (1968) (“The jurisdiction of federal courts is defined and limited by

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Article II of the Constitution. . . . [T]he judicial power of federal courts is constitutionally

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restricted to ‘cases’ and ‘controversies.’”).

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Petitioner has not filed a federal habeas petition challenging his conviction or

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sentence. There is no concrete dispute for the Court to adjudicate. Petitioner essentially

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seeks an advisory opinion regarding the potential timeliness of any federal habeas petition

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that he might file in the future, which the Court lacks the authority to issue. See Calderon v.

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Ashmus, 523 U.S. 740, 746-748 (1998) (no justiciable question where petitioners seek

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advance ruling on statute of limitations defense; actual “controversy” in 28 U.S.C. § 2254

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action is whether petitioner is entitled to have his state-imposed conviction or sentence set

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aside).

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If Petitioner files a federal habeas petition in the future, and if the respondent

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challenges the timeliness of that petition, Petitioner may choose to seek equitable tolling of

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the limitations period in light of his allegations regarding lack of notice of the California

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Supreme Court’s order denying review. The one-year statute of limitations set forth in 28
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U.S.C. § 2244(d)(1) is subject to equitable tolling if a petitioner can demonstrate “‘(1) that he

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has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood

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in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 651-52 (2010)

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(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). However, the Court cannot

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determine whether Petitioner would be entitled to equitable tolling at this stage of the

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proceedings.

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Thus, the Petition should be dismissed without prejudice for lack of jurisdiction

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because Petitioner has not established the existence of a case or controversy within the

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meaning of Article III.

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III.

A Certificate of Appealability Is Denied
Pursuant to Rule 11 of the Rules Governing Section 2254 cases, the Court “must

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issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant.” For the aforementioned reasons, the Court concludes that Petitioner has not

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made a substantial showing of the denial of a constitutional right, as is required to support

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the issuance of a certificate of appealability. See 28 U.S.C. § 2253(c)(2). Accordingly, a

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certificate of appealability is denied.

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ORDER
Based on the foregoing, IT IS ORDERED THAT: (1) the Petition is dismissed without
prejudice; and (2) a certificate of appealability is denied.
IT IS SO ORDERED.

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/s/
FERNANDO M. OLGUIN
UNITED STATES DISTRICT JUDGE

DATED: March 22, 2018

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