Carr v. McDowell

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL D. CARR, Case No. 21-cv-900-MMA (MSB)

12 Petitioner, ORDER GRANTING SECOND 13 v. EXTENSION OF TIME TO FILE FIRST AMENDED PETITION 14 NEIL MCDOWELL, Warden, and ROB

BONTA, Attorney General, 15 [Doc. No. 10] Respondents. 16 17 18 Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of 19 Habeas Corpus pursuant to 28 U.S.C. § 2254. See Doc. No. 1. The Court previously 20 instructed Petitioner that in order to reopen and proceed with this case, Petitioner was 21 required to submit a First Amended Petition that cures the pleading deficiencies outlined 22 in the Court’s May 19, 2021 Order together with the required filing fee on or before July 23 19, 2021, and if Petitioner failed to satisfy the exhaustion requirement as to any claim 24 presented in the action or request a stay of the instant habeas action while he exhausted 25 his unexhausted claims, he would need to file a new petition which will be given a new 26 civil case number. See Doc. No. 3. In its July 12, 2021 Order, the Court granted an 27 extension of time for filing of a First Amended Petition to September 20, 2021, to allow 28 Petitioner an opportunity to clarify whether he intends to bring any exhausted claims in 1 the instant habeas action and whether he intends to seek a stay of this action while he 2 exhausts. See Doc. No. 8. 3 Petitioner now writes that he cannot meet the September 20, 2021 deadline because 4 of “[t]he extraordinary circumstance of the pandemic surge” and his “continued denial of 5 access to the law library.” See Doc. No. 10. Given Petitioner’s lack of access to the law 6 library or legal documents, the Court GRANTS an extension of time for filing of a First 7 Amended Petition to November 5, 2021, to allow Petitioner an opportunity to clarify 8 whether he intends to bring any exhausted claims in the instant habeas action and whether 9 he intends to seek a stay of this action while he exhausts. 10 Once more, the Court cautions Petitioner that any claims raised in a habeas petition 11 in this Court must be filed before the expiration of the one-year statute of limitations. See 12 28 U.S.C. § 2244(d).1 The statute of limitations does not run while a properly filed state 13 habeas corpus petition is pending. 28 U.S.C. § 2244(d); see Evans v. Chavis, 546 U.S. 14 189, 193 (2006) (“As long as the prisoner filed a petition for appellate review within a 15 ‘reasonable time,’ he could count as ‘pending’ (and add to the 1–year time limit) the days 16 between (1) the time the lower state court reached an adverse decision, and (2) the day he 17 filed a petition in the higher state court.”), citing Carey v. Saffold, 536 U.S. 214, 222–23 18 19 20 1 28 U.S.C. § 2244(d) provides: 21 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in 22 custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— 23 (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; 24 (B) the date on which the impediment to filing an application created by State action in violation 25 of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 26 (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 27 applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been 28 1 || (2002); but see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 2 || ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 3 || placement into the record] are in compliance with the applicable laws and rules 4 || governing filings.”); Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (“Because the state 5 || court rejected petitioner’s [post-conviction] petition as untimely, it was not ‘properly 6 || filed,’ and he is not entitled to statutory tolling under § 2244(d)(2).”). However, absent 7 ||some other basis for tolling, the statute of limitations continues to run while a federal 8 ||habeas petition is pending. See Duncan v. Walker, 533 U.S. 167, 181-182 (2001). 9 CONCLUSION 10 While the instant habeas action remains dismissed without prejudice and with 11 leave to amend for failure to allege exhaustion of state court remedies as to the claims 12 || presented in the Petition, the Court GRANTS an extension of time for filing of a First 13 || Amended Petition to November 5, 2021, to allow Petitioner an opportunity to clarify 14 || whether he intends to bring any exhausted claims in the instant habeas action and whether 15 intends to seek a stay of this action while he exhausts. No further extensions will be 16 || granted unless Petitioner can show extraordinary circumstances. If, on or before 17 || November 5, 2021, Petitioner has not satisfied the exhaustion requirement as to any 18 || claim presented in the action or requested a stay of this action while he exhausts his 19 || unexhausted claims, he will need to file a new habeas petition which will be given a new 20 case number. Finally, to the extent Petitioner wishes to pursue claims concerning 21 conditions of his confinement, he must file a new civil rights action pursuant to 22 U.S.C. § 1983, which will be given a new civil case number. 23 The Clerk of Court is directed to send Petitioner a blank Southern District of 24 || California amended petition form along with a copy of this Order. 25 IT IS SO ORDERED. 26 ||Dated: August 25, 2021 Miku U-ldivlle 27 Hon. Michael M. Anello 28 United States District Judge