Elliott v. The People of the State of California et al

Filing 2

ORDER DISMISSING CASE without prejudice. This action is DISMISSED without prejudice because Petitioner has not filed a Petition and has therefore failed to initiate federal habeas proceedings in this action. If Petitioner is a capital prisoner he may request to have this case reopened. Signed by Judge M. James Lorenz on 3/29/2007. (mjj, )(mam).

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Elliott v. The People of the State of California et al Doc. 2 Case 3:07-cv-00535-L-JMA Document 2 Filed 03/29/2007 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. ROBERT J. HERNANDEZ, Warden, Respondent. DOUGLAS P. ELLIOT, Petitioner, ORDER DISMISSING CASE WITHOUT PREJUDICE Civil No. 07cv0535-L (JMA) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Petitioner, a state prisoner proceeding pro se, has submitted a document which has been docketed as a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254, but wherein Petitioner merely states that he is in the process of preparing a federal habeas petition and requests an extension of time in which to file his petition. FAILURE TO FILE PETITION Petitioner has not filed a Petition for writ of habeas corpus in this action. Therefore, unless Petitioner is a capital prisoner, he has not initiated habeas proceedings in this Court. Calderon (Nicolaus) v. United States District Court, 98 F.3d 1102, 1107 n. 3 (9th Cir. 1996) ("Unlike non-capital prisoner who initiate habeas proceedings by filing a petition for a writ of habeas corpus, capital prisoners commence federal habeas proceedings by filing a request for appointment of counsel."); McFarland v. Scott, 512 U.S. 849 (1994). /// -1- K:\COMMON\EVERYONE\_EFILE-PROSE\L\07cv0535.Dismiss.wpd, 3297 07cv0535 Dockets.Justia.com Case 3:07-cv-00535-L-JMA Document 2 Filed 03/29/2007 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CC: Petitioner does not contend that he is a capital prisoner, that is, a prisoner under sentence of death, and there is nothing in the documents he has submitted which indicates that he is a capital prisoner. If Petitioner wishes to proceed with a habeas action in this Court he must (as is the case with all non-capital prisoners) file a petition for writ of habeas corpus, which will be given a separate civil case number. However, if Petitioner is in fact a capital prisoner, he may request the Court to re-open this action in order to permit him to file a Petition under the civil case number assigned to this action. The Court notes that Petitioner filed a habeas petition several days after filing the instant request. That petition was transferred from this Court to the Central District of California on March 27, 2007. (See Docket No. 3 in So. Dist. CA Civil Case No. 07cv0550.) The dismissal of this action is without prejudice to Petitioner to seek the requested relief in the Central District. CONCLUSION AND ORDER This action is DISMISSED without prejudice because Petitioner has not filed a Petition and has therefore failed to initiate federal habeas proceedings in this action. If Petitioner is a capital prisoner he may request to have this case reopened. IT IS SO ORDERED. DATED: March 29, 2007 M. James Lorenz United States District Court Judge ALL PARTIES K:\COMMON\EVERYONE\_EFILE-PROSE\L\07cv0535.Dismiss.wpd, 3297 -2- 07cv0535

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