(HC) Simms v. Lynch

Opinion

ROBERT LEE SIMMS, Case No. 2:21-cv-00035-JDP (HC) Petitioner, ORDER DENYING WITHOUT PREJUDICE PETITIONER’S MOTION FOR AN v. EXTENSION OF TIME UNKNOWN, ECF No. 1. Respondent. Petitioner, a state prisoner proceeding without counsel, has filed a motion for an extension of time to file a petition for writ of habeas corpus. ECF No. 1. No other documents have been filed. To commence a civil action, a party is required to file a complaint or a petition, and he or she must either pay the required filing fee or submit an application to proceed in forma pauperis. Fed. R. Civ. P. 3; Rule 3, Rules Governing § 2254 Cases; 28 U.S.C. §§ 1914(a), 1915(a); see Woodford v. Garceau, 538 U.S. 202, 203 (2003). Petitioner’s filing does not constitute a petition, and he has not paid the filing fee nor submitted an application to proceed in forma pauperis. Accordingly, petitioner has not properly commenced this action. See Delarm v. McDonald, No. Civ-S-11-0750-CKD P, 2011 WL 6012346, *2 n.6 (E.D. Cal. Dec. 1, 2011) (“filing a request for an extension of time to file a § 2254 habeas petition before the petition has actually been filed is not proper as there is no § 2254 action until the petition has been filed . . . .”). The court will not issue any orders granting or denying relief until an action has been properly commenced. Petitioner’s motion will therefore be denied without prejudice. Petitioner will be provided an opportunity to file his petition and either pay the $5 filing fee or submit an application to proceed in forma pauperis. Accordingly, it is hereby ORDERED that: 1. Petitioner’s motion for an extension of time to file a writ of habeas corpus, ECF No. 1, is denied without prejudice; 2. The Clerk of the Court is directed to send petitioner the court’s form for filing a petition for writ of habeas corpus, and the application to proceed in forma pauperis by a prisoner. 3. Petitioner is granted thirty days from the date of this order to file a petition for writ of habeas corpus. 4. Petitioner shall also submit, within thirty days from the date of this order, either the $5 filing fee or an application to proceed in forma pauperis. 5. Failure to comply with this order may result in this case being closed. ( 1 Sy — Dated: _ January 21, 2021 ow JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE