Martinez v. Unknown

Filing 2

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/4/13 ORDERING that Petitioner shall file a petition for writ of habeas corpus within 30 days of the date of this order; Petitioner is warned that failure to do so will result in this case being closed; and the Clerk of the Court is directed to send petitioner the courts form for application for writ of habeas corpus. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN HECTOR MARTINEZ,
Petitioner,

ORDER

vs.

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No. 2:12-cv-3063 EFB P

Respondent.

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UNKNOWN,

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/

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Petitioner, a state prisoner without counsel, filed a motion for an extension of time

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without filing a petition for writ of habeas corpus. The filing does not provide any specifics

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regarding petitioner’s state conviction or contain any claims for relief.
To commence a civil action, a party is required to file a complaint or petition. Fed. R.

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Civ. P. 3; Rule 3, Rules Governing § 2254 Cases; Woodford v. Garceau, 538 U.S. 202, 203

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(2003). Petitioner’s filing constitutes neither. As petitioner has failed to properly commence

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this action, the court may not properly rule on his motion for an extension of time. See Delarm

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v. McDonald, No. Civ-S-11-0750 CKD P, 2011 WL 6012346, *2 n.6 (E.D. Cal. Dec. 1, 2011)

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(“filing a request for an extension of time to file a § 2254 habeas petition before the petition has

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actually been filed is not proper as there is no § 2254 action until the petition has been filed

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. . . .”).
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Petitioner is warned that his filing does not act as a protective petition for purposes of the

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Anti-Terrorism and Effective Death Penalty Act of 1996’s one-year statute of limitation. If

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petitioner wishes to proceed with this case, he must file a petition.

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Accordingly, it is hereby ORDERED that:

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1. Petitioner shall file a petition for writ of habeas corpus within 30 days of the date of

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this order;

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2. Petitioner is warned that failure to do so will result in this case being closed; and

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3. The Clerk of the Court is directed to send petitioner the court’s form for application

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for writ of habeas corpus.

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DATED: January 4, 2013.

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