Purdy v. Attorney General of the State of California

Filing 13

ORDER signed by District Judge Kimberly J. Mueller on 8/8/2017 DENYING 12 Motion for Extension; Petitioner's writ is DISMISSED without prejudice; No certificate of appealability will issue; and The Clerk of the Court shall close this case. CASE CLOSED(Washington, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HELEN SOPHIA PURDY, 12 Petitioner, 13 14 15 No. 2:17-cv-00307 KJM GGH v. ORDER ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondent. 16 Petitioner filed her petition for habeas corpus on February 13, 2017. ECF No. 1. 17 18 The matter was referred to a United States Magistrate Judge as provided by Local Rule 19 302(c)(21). In forma pauperis status was granted to petitioner by this court’s order of March 13, 20 2017. ECF No. 6. The petition was dismissed in that same order, insofar as in the 741 pages of 21 material submitted by petitioner, it appeared she admitted she had never been incarcerated and 22 was “instead seeking relief for wrong brought upon her by law enforcement officials and her 23 defense lawyer.” Id. at 3:3-7. The court noted that the materials submitted by petitioner included 24 an order from the California Supreme Court, ECF No. 1 at 79, in which that court denied her writ 25 relying on cases that denied writs on the ground that the petitioner was not in custody. ECF No. 6 26 at 2:22-3:1. For this reason the magistrate judge dismissed the petition for lack of jurisdiction 27 with leave to file a complaint within 30 days of the order to seek relief under 42 U.S.C. section 28 ///// 1 1 1983 if that was indeed the basis for petitioner’s grievance. Thus plaintiff’s complaint was due to 2 be filed on April 13, 2017. Id. at 4:9-10. 3 On March 27, 2017, petitioner requested an extension of time to act upon the 4 court’s order. ECF No, 7. Given that the order required petitioner to fashion an entirely new 5 complaint, the court extended her 45 days, with her amended complaint due on May 8, 2017. 6 ECF No. 8. On May 15, 2017, having received no amended complaint, the magistrate judge 7 issued findings and recommendations that plaintiff’s still-pending habeas corpus petition be 8 dismissed without prejudice. ECF No. 9. In those findings and recommendations, the magistrate 9 judge gave the petitioner fourteen (14) days, or until May 29, 2017, to object and warned that a 10 failure to do so within the specified time could waive her right to appeal any order ultimately 11 issued by this district court. Id. at 1:25-2:3. Not only did petitioner not file objections by May 12 29, she was silent until June 5, 2017 when she filed a request for an additional 30 day extension 13 of time to file a complaint. ECF No. 12. Petitioner’s request for more time confirms she is not 14 incarcerated. Id. 15 At this point, more than 80 days had passed since petitioner was given notice she 16 must take action on filing a complaint in lieu of a petition for habeas corpus. Indeed petitioner 17 has had notice of the need to take action for over a year since the California Supreme Court’s 18 opinion gave her notice on March 23, 2016, by its citation to two cases, People v. Villa, 45 19 Cal.4th 1063 (2009) and In re Wessley W., 125 Cal.App.3d 240, 246 (1981), that she was 20 ineligible for a writ of habeas corpus because she was not in custody, or in a position of having 21 her physical freedom restrained in any way by criminal proceedings or court actions. ECF No. 1 22 at 79. Thus she has had, in actuality, some 14 months to fashion a different approach to her 23 claims of injury. Petitioner has had more than sufficient time to comply with the orders of this 24 court in a timely fashion and has failed to do so. 25 ///// 26 ///// 27 ///// 28 ///// 2 1 In light of the foregoing, and having conducted a de novo review of the magistrate 2 judge’s recommendation that the petition be dismissed without prejudice for lack of jurisdiction, 3 ECF No. 9, IT IS HEREBY ORDERED THAT: 4 1. Petitioner’s request for a further extension of time is denied; 5 2. Petitioner’s writ is dismissed without prejudice; 6 3. No certificate of appealability will issue; and 7 4. The Clerk of the Court shall close this case. 8 DATED: August 8, 2017. 9 10 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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