Walker v. Beard

Filing 3

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/13/2016 ORDERING the Clerk to send petitioner the court's forms for application for writ of habeas corpus and application to proceed ifp. Within 30 days, petitioner shall either pay the $5.00 filing fee or submit a complete application to proceed ifp. Within 30 days, petitioner shall file a petition for writ of habeas corpus. Failure to comply with this order may result in this case being closed.(Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

THELMEAS WALKER, JR.,

12

Petitioner,

13
14

v.

No. 2:16-cv-0047-EFB P

ORDER

JEFFREY BEARD, et al.,

15

Respondents.

16
Petitioner, a state prisoner without counsel, filed a motion for an extension of time without

17
18

filing a petition for writ of habeas corpus. The filing does not provide any specifics regarding

19

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.

20
21

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

22

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

23

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

24

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

25

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

26

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

27

. . . .”).

28

/////

1

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

2

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

3

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

4

either file an in forma pauperis affidavit or pay the required filing fee ($5.00). See 28 U.S.C.

5

§§ 1914(a); 1915(a).

6

Accordingly, it is hereby ORDERED that:

7

1. The Clerk of the Court shall send to petitioner the court’s forms for application for writ

8
9
10
11
12
13
14

of habeas corpus and application for leave to proceed in forma pauperis.
2. Within 30 days of the date of this order, petitioner shall either pay the $5 filing fee or
submit a complete application for leave to proceed in forma pauperis.
3. Within 30 days of the date of this order, petitioner shall file a petition for writ of
habeas corpus.
4. Failure to comply with this order may result in this case being closed.
DATED: January 13, 2016.

15
16
17
18
19
20
21
22
23
24
25
26
27
28
2