Vera v. Adams et al

Filing 2

ORDER Denying Without Prejudice Request for Extension of Time; Petitioner's request to toll the statute of limitations is denied without prejudice; Signed by Judge Larry Alan Burns on 9/20/10.(All non-registered users served via U.S. Mail Service)(kaj)

- B L M Vera v. Adams et al

Doc. 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 2 8 U.S.C.A. § 2244(d)(1)(A)-(D) (2008). v. DARRIL ADAMS, et al., Respondents. P e titio n e r, a state prisoner proceeding pro se, has filed a letter and attachments asking the C o u rt to toll the deadline for filing his habeas corpus petition pursuant to 28 U.S.C. § 2254. The C o u rt is without jurisdiction to extend the one-year statute of limitations of 28 U.S.C. § 2241(d)(1)(A)-(D), which provides that the limitation period shall run from the latest of: (A ) the date on which the judgment became final by the conclusion of d ire c t review or the expiration of the time for seeking such review; (B ) the date on which the impediment to filing an application created by S tate action in violation of the Constitution or laws of the United States is re m o v e d , if the applicant was prevented from filing by such State action; (C ) the date on which the constitutional right asserted was initially re c o g n iz e d by the Supreme Court, if the right has been newly recognized by the S u p re m e Court and made retroactively applicable to cases on collateral review; or (D ) the date on which the factual predicate of the claim or claims presented c o u ld have been discovered through the exercise of due diligence. GUILLERMO VERA, Petitioner, ORDER DENYING WITHOUT PREJUDICE REQUEST FOR EXTENSION OF TIME Civil No. 10-1940 LAB (BLM) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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T h e statute of limitations does not run while a properly filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). B u t see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that "an application is `properly filed' w h e n its delivery and acceptance [by the appropriate court officer for placement into the record] a re in compliance with the applicable laws and rules governing filings."). However, absent some o th e r basis for tolling, the statute of limitations does run while a federal habeas petition is p e n d in g . Duncan v. Walker, 533 U.S. 167, 181-82 (2001). P e titio n e r has not filed a Petition for writ of habeas corpus in this action. Therefore, u n les s Petitioner is a capital prisoner, he has not initiated habeas proceedings in this Court. C a l d e r o n (Nicolaus) v. United States District Court, 98 F.3d 1102, 1107 n. 3 (9th Cir. 1996) (s ta tin g that "[u]nlike non-capital prisoners who initiate habeas proceedings by filing a petition f o r a writ of habeas corpus, capital prisoners commence federal habeas proceedings by filing a re q u e st for appointment of counsel"); McFarland v. Scott, 512 U.S. 849 (1994). Petitioner does n o t contend that he is a capital prisoner, that is, a prisoner under sentence of death, and there is n o th in g in the documents he has submitted which indicates that he is a capital prisoner. CONCLUSION F o r the foregoing reasons, Petitioner's request to toll the statute of limitations is DENIED w ith o u t prejudice. I T IS SO ORDERED.

D A T E D : September 20, 2010

H ONORABLE LARRY ALAN BURNS U n ite d States District Judge

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