DeAnda v. Unknown
ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 1/19/17 ORDERING petitioner's request for an extension of time 8 is denied. This order shall be served on Michael Patrick Farrell, Senior Assistant Attorney General. Also, RECOMMENDING that this action be dismissed without prejudice. Referred to Judge John A. Mendez. Objections due within 21 days. (Plummer, M)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:16-cv-2755 JAM GGH P
Petitioner has requested an extension of time to file a petition for writ of habeas corpus.
Good cause appearing, IT IS HEREBY ORDERED that:
1. Petitioner’s request for an extension of time (ECF No. 8) is denied;
2. This order shall be served on Michael Patrick Farrell, Senior Assistant Attorney
General, State of California.
IT IS RECOMMENDED that the action be dismissed without prejudice.
As explained previously, petitioner cannot preempt the AEDPA habeas corpus time
limitations by continually requesting extensions of time to file a petition. A habeas corpus
proceeding is not commenced until a petition is filed. See Rules Governing 2254 Actions, Rule
12, adopting Fed.R.Civ.P rules, unless inconsistent with the habeas rules, and Fed.R.Civ.P. 3
providing that an action is “commenced” with the filing of a complaint. Therefore, a [non-death
penalty] habeas action is “commenced” with the filing of a petition. Without some document
which cognizably could be termed a petition, even if defective, no habeas action is commenced.
Unless statutes or the rules otherwise provide, a court has no jurisdiction to issue determinations
on issues which may or may not be raised once the action is commenced and ongoing,-- when the
respondent party has been served and is available to contest the issue, if respondent so desires.
Some courts agree with the undersigned; some do not. See United States v. Leon, 203
F.3d 162 (2nd Cir. 2000) (no jurisdiction); Soocha v. Pollard, 621 F.3d 667 (7th Cir. 2010)
(jurisdiction). Lower courts fall on both sides of the question. And, the Supreme Court ruled in a
death penalty habeas context, with a statutorily authorized, more or less mandatory, counsel
appointment procedure, that death penalty habeas corpus actions commence with a request for
counsel. McFarland v. Scott, 512 U.S. 849 (1994). However, this present “action” does not
derive from a death penalty case.
It makes no more sense in the context of a non-death penalty habeas proceeding to review,
ex parte, a possible statute of limitations defense and extensions of time regarding the
commencement of the action, than it does to make the same determination in a contract or tort
context prior to the commencement of the action. The undersigned agrees with Leon.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days
after being served with these findings and recommendations, petitioner may file written
objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that
failure to file objections within the specified time may waive the right to appeal the District
Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: January 19, 2017
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
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