Junkin v. Hill

Filing 3

ORDER signed by Magistrate Judge Deborah Barnes on 2/9/2018 DENYING without prejudice the 1 Request for Extension of Time. Petitioner is GRANTED 30 days from the date of service of this order to file a Petition and submit the application to Proceed In Forma Pauperis, or the filing fee in the amount of $5.00. (Fabillaran, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY JUNKIN,

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No. 2:18-cv-0290 DB P

Petitioner,
v.

ORDER

RON RACKLEY, Warden,
Respondent.

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Petitioner, a state prisoner at Folsom State Prison, has filed a document in which he

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requests an extension of time to file an application for writ of habeas corpus. No other pleadings

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have been filed by the petitioner.

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Petitioner appears to be concerned that his pending state habeas petition will not toll the

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statute of limitations. It is true that should the state court find his pending state petition was not

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“properly filed,” that petition will not toll the statute under 28 U.S.C. § 2244(d)(2). In that case,

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if petitioner files his federal petition after that state habeas proceeding has concluded, he risks

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having his federal petition dismissed as untimely.

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In Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), the Court suggested that a petitioner

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may file a protective federal habeas petition while a state court petition is pending in this

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situation. See also Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006) (suggesting that

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petitioners “file in both state and federal court simultaneously where there is some procedural
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uncertainty about the state court post-conviction proceeding, and then ask the district court to stay

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the federal case until the state case concludes to ensure that she does not miss the one-year

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deadline.”). Indeed, “[a] petitioner's reasonable confusion about whether a state filing would be

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timely will ordinarily constitute ‘good cause’ for him to file in federal court” pending exhaustion

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of his claims in state court. Pace, 544 U.S. at 416.

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If petitioner is reasonably confused about whether his state court filing will be considered

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“properly filed,” he may file a protective federal habeas petition here as described in Pace.

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Petitioner may then seek a stay of these federal proceedings until he has exhausted his remedies

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in state court. Petitioner will be given an opportunity to file a federal petition. However, if he

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fails to do so, this case will be dismissed. In order to commence an action, petitioner must file a

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petition for writ of habeas corpus as required by Rule 3 of the Rules Governing Section 2254

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cases. In addition, petitioner must either pay the required filing fee or file an application

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requesting leave to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a), 1915(a). Petitioner has

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not yet done so.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner’s request (ECF No. 1) is denied without prejudice;

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2. Petitioner is granted thirty days from the date of service of this order to file a petition

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that complies with the requirements of the Rules Governing Section 2254 Cases, the Federal

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Rules of Civil Procedure, and the Local Rules of Practice; the petition must bear the docket

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number assigned this case; petitioner must file an original and two copies of the petition.

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Petitioner shall also submit, within thirty days from the date of this order, the application to

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proceed in forma pauperis on the form provided by the Clerk of Court, or the filing fee in the

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amount of $5.00. Petitioner’s failure to comply with this order will result in a recommendation

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that this matter be dismissed; and

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

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petition for writ of habeas corpus, and the application to proceed in forma pauperis by a prisoner.

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Dated: February 9, 2018

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DLB:9
DB/orders/prisoner-habeas/junk0290.no petition

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