Albin v. CDCR

Filing 11

ORDER: The Court notes that the Clerk of the Court has updated Petitioner's address on the docket. Petitioner's case remains closed. The Motion for Status of Case is granted. (Dkt # 8 ). The Clerk shall send to Petitioner at his new addres s: (1) a copy of the docket; (2) a copy of all Orders issued in the case, and (3) a blank Southern District of California amended petition form. The Motion to Vacate the Court's Order on 11/8/2016 is denied. (Dkt # 10 ). The Court grants Petiti oner an extension of time to comply with the Court's prior Orders. To have this case reopened, Petitioner must, no later than 7/7/2017, provide the Court with a first amended petition. Petitioner may resubmit a motion for stay with any amended petition. Signed by Judge William Q. Hayes on 4/25/2017. (All non-registered users served via U.S. Mail Service. Documents/printouts, as directed, also were sent to Petitioner.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SHAWN ALBIN,

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v.
CDCR,

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CASE NO. 16cv2622-WQH-WVG
Petitioner

ORDER

Respondent.

14 HAYES, Judge:
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The matters before the Court are the “Notice of Change of Address/Motion for

16 Status of Case” (ECF No. 8) and the “Motion to Vacate” filed by Petitioner Shawn
17 Albin (ECF No. 10).
18 I. Background
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On October 19, 2016, Petitioner initiated this action by filing a Petition for Writ

20 of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). Petitioner concurrently
21 filed a Motion for Stay and Abeyance. (ECF No. 2). On November 8, 2016, this Court
22 dismissed the Petition without prejudice and with leave to amend. The Court concluded
23 that Petitioner had not paid the filing fee or qualified to proceed in forma pauperis and
24 had failed to state grounds for relief. (ECF No. 4). In the Order, the Court determined
25 that Petitioner’s Motion for Stay and Abeyance was “essentially asking for an extension
26 of the one-year statute of limitations.” Id. at 2. The Order stated,
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The Court is without jurisdiction to extend the one-year statute of
limitations of 28 U.S.C. § 2244(d)(1)(A)-(D), which provides that the
limitation period runs from the latest of:
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16cv2622-WQH-WVG

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(A) the date on which the judgment became
final by the conclusion of direct review or the
expiration of the time for seeking such review;

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(B) the date on which the impediment to filing
an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;

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(C) the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review; or

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(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due
diligence.

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28 U.S.C. § 2244(d)(1)(A)-(D) (2008).
The 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). But see Artuz v. Bennett,
531 U.S. 4, 8 (2000) (holding that “an application is ‘properly filed’ when
its delivery and acceptance [by the appropriate court officer for placement
into the record] are in compliance with the applicable laws and rules
governing filings.”). However, absent some other basis for tolling, the
statute of limitations does run while a federal habeas petition is pending.
Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

18 Id. at 2-3. The Court further concluded that the Motion for Stay and Abeyance failed
19 to satisfy the Rhines requirements. See Rhines v. Webber, 544 U.S. 269, 277-78 (2005).
20 The Order stated,
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If Petitioner wishes to proceed with this case, he must, no later than
February 13, 2017: (1) pay the $5.00 filing fee OR submit adequate proof
of his inability to pay the fee; AND (2) file First Amended Petition that
adequately states grounds for relief. . . . Petitioner may resubmit a motion
for stay with any amended petition. Petitioner is advised that in his motion
for stay he must establish how he satisfies the Rhines requirements.

25 (ECF No. 4 at 3).
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After Petitioner filed a motion for leave to proceed in forma pauperis, the

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Court granted Petitioner leave to proceed in forma pauperis. (ECF No. 6). The Court

28 stated, “[P]ursuant to its November 8, 2016 Order, the case remains closed. In order to
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16cv2622-WQH-WVG

1 have it reopened, Petitioner must submit a First Amended Petition no later than
2 February 13, 2017.” Id. at 2.
3 II. Motion for Status of Case
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On March 16, 2017, Petitioner filed a “Notice for Change of Address/Motion for

5 Status of Case.” (ECF No. 8). The motion notifies the Court that Petitioner has been
6 transferred and requests that the Court take note of his new address. Id. at 1. Petitioner
7 states that he “is having difficulties obtaining his property which contains all of his
8 legal materials.” Id. at 2. Petitioner contends that prison officials are preventing
9 Petitioner from receiving his court documents and “are restricting Petitioner’s access
10 to the courts by way of denying him access to his legal court documents.” Id.
11 Petitioner asks the Court if “any rulings [have] been rendered in this matter and sent to
12 where petitioner was previously located.” Id. at 3. Petitioner requests “a printout of the
13 current docket in this matter and any court orders which may have been rendered.” Id.
14 III. Motion to Vacate
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On March 11, 2017, Petitioner filed a “Motion to Vacate.” (ECF No. 10).

16 Petitioner requests that the Court vacate its November 8, 2016 Order and reinstate both
17 the Petition and the Motion for Stay and Abeyance. Id. at 1. Petitioner contends that
18 he did not discover that the Petition had been dismissed until March 28, 2017. Id. at 3.
19 Petitioner contends that he “does not yet know enough about what position the court has
20 taken on Petitioner’s stay and abeyance petition/motion in order to even file a First
21 Amended Petition.” Id. Petitioner requests that the Court vacate its November 8, 2016
22 Order, provide Petitioner with a copy of the November 8, 2016 Order, and consider his
23 Petition and Motion for Stay and Abeyance. Id. at 4.
24 IV. Ruling of the Court
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Initially, the Court notes that the Clerk of the Court has updated Petitioner’s

26 address on the docket. This case is currently closed. Petitioner has not complied with
27 this Court’s previous Orders. Petitioner has not filed a First Amended Petition.
28 Accordingly, Petitioner’s case remains closed.
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The Motion for Status of Case is GRANTED. (ECF No. 8). The Clerk shall send

2 to Petitioner at his new address: (1) a copy of the docket; (2) a copy of all Orders issued
3 in the case, and; (3) a blank Southern District of California amended petition form.
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The Motion to Vacate the Court’s Order on November 8, 2016 is DENIED.

5 (ECF No. 10).
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The Court grants Petitioner an extension of time to comply with the Court’s prior

7 Orders. To have this case reopened, Petitioner must, no later than Friday, July 7, 2017,
8 provide the Court with a first amended petition which cures the defects of the Petition
9 identified in this Court’s previous Orders. Petitioner may resubmit a motion for stay
10 with any amended petition. Petitioner is cautioned that this Order does not extend the
11 otherwise applicable one-year statute of limitations period provided in 28 U.S.C. §
12 2244(d)(1).
13 DATED: April 25, 2017
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WILLIAM Q. HAYES
United States District Judge

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