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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HELEN SOPHIA PURDY,

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Petitioner,

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No. 2:17-cv-00307 KJM GGH

v.

ORDER

ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,
Respondent.

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Petitioner filed her petition for habeas corpus on February 13, 2017. ECF No. 1.

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The matter was referred to a United States Magistrate Judge as provided by Local Rule

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302(c)(21). In forma pauperis status was granted to petitioner by this court’s order of March 13,

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2017. ECF No. 6. The petition was dismissed in that same order, insofar as in the 741 pages of

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material submitted by petitioner, it appeared she admitted she had never been incarcerated and

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was “instead seeking relief for wrong brought upon her by law enforcement officials and her

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defense lawyer.” Id. at 3:3-7. The court noted that the materials submitted by petitioner included

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an order from the California Supreme Court, ECF No. 1 at 79, in which that court denied her writ

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relying on cases that denied writs on the ground that the petitioner was not in custody. ECF No. 6

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at 2:22-3:1. For this reason the magistrate judge dismissed the petition for lack of jurisdiction

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with leave to file a complaint within 30 days of the order to seek relief under 42 U.S.C. section

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1983 if that was indeed the basis for petitioner’s grievance. Thus plaintiff’s complaint was due to

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be filed on April 13, 2017. Id. at 4:9-10.

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On March 27, 2017, petitioner requested an extension of time to act upon the

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court’s order. ECF No, 7. Given that the order required petitioner to fashion an entirely new

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complaint, the court extended her 45 days, with her amended complaint due on May 8, 2017.

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ECF No. 8. On May 15, 2017, having received no amended complaint, the magistrate judge

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issued findings and recommendations that plaintiff’s still-pending habeas corpus petition be

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dismissed without prejudice. ECF No. 9. In those findings and recommendations, the magistrate

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judge gave the petitioner fourteen (14) days, or until May 29, 2017, to object and warned that a

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failure to do so within the specified time could waive her right to appeal any order ultimately

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issued by this district court. Id. at 1:25-2:3. Not only did petitioner not file objections by May

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29, she was silent until June 5, 2017 when she filed a request for an additional 30 day extension

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of time to file a complaint. ECF No. 12. Petitioner’s request for more time confirms she is not

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incarcerated. Id.

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At this point, more than 80 days had passed since petitioner was given notice she

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must take action on filing a complaint in lieu of a petition for habeas corpus. Indeed petitioner

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has had notice of the need to take action for over a year since the California Supreme Court’s

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opinion gave her notice on March 23, 2016, by its citation to two cases, People v. Villa, 45

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Cal.4th 1063 (2009) and In re Wessley W., 125 Cal.App.3d 240, 246 (1981), that she was

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ineligible for a writ of habeas corpus because she was not in custody, or in a position of having

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her physical freedom restrained in any way by criminal proceedings or court actions. ECF No. 1

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at 79. Thus she has had, in actuality, some 14 months to fashion a different approach to her

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claims of injury. Petitioner has had more than sufficient time to comply with the orders of this

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court in a timely fashion and has failed to do so.

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In light of the foregoing, and having conducted a de novo review of the magistrate

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judge’s recommendation that the petition be dismissed without prejudice for lack of jurisdiction,

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ECF No. 9, IT IS HEREBY ORDERED THAT:

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1. Petitioner’s request for a further extension of time is denied;

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2. Petitioner’s writ is dismissed without prejudice;

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3. No certificate of appealability will issue; and

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4. The Clerk of the Court shall close this case.

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DATED: August 8, 2017.

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UNITED STATES DISTRICT JUDGE

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