Hall v. Unknown
Filing
2
MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 5/14/13. Copy sent; Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
DEVAUGHNHALL,
Petitioner,
Civil Action No. 3:13CV189-HEH
v.
UNKNOWN,
Respondent.
MEMORANDUM OPINION
(Dismissing Action Without Prejudice)
DeVaughn Hall has submitted a motion asking for an extension of time in which
to file a motion under 28 U.S.C. § 2254. Federal Courts, however, lack jurisdiction to
consider the timeliness of a § 2254 petition until it is actually filed. Gregory v. Bassett,
No. 3:07cv790,2009 WL 455267, at *2 (E.D. Va. Feb. 23,2009) (citations omitted); see
UnitedStates v. White, 257 F. App'x 608, 609 (4th Cir. 2007) (holding that no case or
controversy existed before § 2255 motion was actually filed) (citing United States v.
Leon, 203 F.3d 162,164 (2d Cir. 2000)). Because a § 2254 petition did not accompany
Hall's motion for an extension of time and because the motion did not contain any
cognizable claims for habeas relief, Hall's motion for an extension of time (ECF No. 1)
will be denied. See Ramirez v. United States, 461 F. Supp. 2d 439,440-41 (E.D. Va.
2006) (citing cases). This action will be dismissed without prejudice.
The Clerk will be directed to forward to Hall the form for filing a petition under 28
U.S.C. § 2254. Any § 2254 petition that Hall files must conform to the rules governing
such motions and be sworn to under the penalty of perjury. See Rules Governing § 2254
Proceedings in the U.S. District Courts, Rule 2(c). Hall also is advised that § 2254
petitions are subject to a one-year statute of limitations and a restriction against second or
successive petitions. See 28 U.S.C. §§ 2244(b)(3) & (d).
An appeal may not be taken from the final order in a § 2254 proceeding unless a
judge issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1). A COA will
not issue unless a prisoner makes "a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). This requirement is satisfied only when "reasonable
jurists could debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were 'adequate to deserve
encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473,484 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). No law or evidence suggests
that Hall is entitled to further consideration in this matter. A certificate of appealability
will be denied.
The Clerk is DIRECTED to send a copy of the Memorandum Opinion to Hall.
It is so ORDERED.
rtpj,
Date: liW IS 2X>I3
Richmond, Virg'inia
*i
/s/
HENRY E. HUDSON
UNITED STATES DISTRICT JUDGE
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