Harris v. Russell

Filing 7

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that petitioners request for a form application for filing a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is GRANTED. The Clerk shall provide petitioner a copy of this form document, as well as a copy of the form motion to proceed in forma pauperis.IT IS FURTHER ORDERED that petitioners request for extension of time to file his application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 isDENIED. Signed by District Judge Audrey G. Fleissig on 12/18/12. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JIM HARRIS, JR.,
Petitioner,
v.
TERRY RUSSELL,
Respondent.

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No. 4:12CV1812 AGF

MEMORANDUM AND ORDER
Before the Court is petitioner’s request for a form application for writ of
habeas corpus, as well as a motion for extension of time to “complete the form.”
This is a closed mandamus action that was dismissed by this Court on
November 27, 2012, as legally frivolous, wherein petitioner sought to “correct jail
time credit in accordance with 558.03.1 RSMO.” In the instant request before the
Court, petitioner seeks a “writ of habeas corpus form under 28 U.S.C. § 2254” and
“an extension of time to receive and complete form.”
The Court will instruct the Clerk of Court to send petitioner a form
application for filing a petition for writ of habeas corpus, pursuant to 28 U.S.C. §
2254. If petitioner wishes to file a petition for writ of habeas corpus in this Court,
he will need to file a new action, thus, his petition must be accompanied by a motion
to proceed in forma pauperis or the proper filing fee.

The Court must decline petitioner’s request, however, to extend him an
unspecified period of “time” to file his application for writ of habeas corpus. The
proper filing of an actual habeas corpus petition in federal court stops the clock on
the one-year limitations period enumerated in 28 U.S.C. § 2244. See, e.g., Rivera v.
Quaterman, 505 F.3d 349, 353 n. 5 (5th Cir. 2007) (a motion for authorization to
file a successive petition is not itself an “application for a writ of habeas corpus”
and, as a result, the filing of such a motion does not satisfy the one-year statute of
limitations under the AEDPA); see also, Woodford v. Garceau, 538 U.S. 202, 207
(2003) (in deciding whether a case was governed by AEDPA where only an
application for the appointment of counsel and a stay of proceedings was filed
before the effective date of AEDPA the Court stated: “whether AEDPA applies to a
state prisoner turns on what was before a federal court on the date AEDPA became
effective. If, on that date, the state prisoner had before a federal court an
application for habeas relief seeking an adjudication on the merits of the petitioner’s
claims, then amended § 2254(d) does not apply. Otherwise, an application filed
after AEDPA’s effective date should be reviewed under AEDPA, even if other
filings by that same applicant - such as, for example, a request for the appointment
of counsel or a motion for stay of execution - were presented to a federal court prior

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to the AEDPA’s effective date”). Thus, the Court cannot grant petitioner’s request
for an open-ended extension of time.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s request for a form application
for filing a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is GRANTED. The
Clerk shall provide petitioner a copy of this form document, as well as a copy of the
form motion to proceed in forma pauperis.
IT IS FURTHER ORDERED that petitioner’s request for extension of time
to file his application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is
DENIED.
Dated this 18th day of December, 2012.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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