RAYMUNDO GARCIA VASQUEZ v. SCOTT FRAUENHEIM, Warden

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RAYMUNDO GARCIA ) Case No. CV 18-419-SVW (SP) VASQUEZ, ) 12 ) Petitioner, ) 13 ) MEMORANDUM AND ORDER v. ) DENYING EXTENSION MOTION 14 ) AND SUMMARILY SCOTT FRAUENHEIM, ) DISMISSING ACTION 15 Warden, ) ) 16 Respondent. ) ) 17 18 On January 17, 2018, “petitioner” Raymundo Garcia Vasquez – who has not 19 actually yet filed a petition in this Court – filed a Motion for Extension of Time. 20 Petitioner is a California state prisoner who requests an extension of time of 21 unspecified length to file a petition for writ of habeas corpus in this Court. 22 Specifically, although not clearly stated, it appears that petitioner is seeking an 23 enlargement of his time under the Antiterrorism and Effective Death Penalty Act’s 24 (“AEDPA”) one-year statute of limitations to file a federal habeas petition under 25 28 U.S.C. § 2254. The relief petitioner requests cannot be granted. 26 Under the “case or controversy” requirement of Article III, Section 2 of the 27 28 1 1 United States Constitution, federal courts may not issue advisory opinions. See 2 Flast v. Cohen, 392 U.S. 83, 96, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). Because 3 petitioner has not actually filed a federal habeas petition challenging his conviction 4 or sentence, there is no case or controversy properly before this Court. This Court 5 therefore lacks jurisdiction to grant a motion to extend petitioner’s time to file a 6 federal habeas petition or to otherwise decide the timeliness of some such potential 7 future petition. See U.S. v. Leon, 203 F.3d 162, 164 (2d Cir. 2000) (“a federal 8 court lacks jurisdiction to consider the timeliness of a § 2255 petition until a 9 petition is actually filed”); McDade v. Warden, 2010 WL 4795377, at *1 (C.D. 10 Cal. 2010) (no jurisdiction to decide timeliness or entitlement to equitable tolling 11 in advance of filing of § 2254 petition); see also Calderon v. Ashmus, 523 U.S. 12 740, 746-49, 118 S. Ct. 1694, 140 L. Ed. 2d 970 (1998) (no “case or controversy” 13 where prisoners sought declaratory relief to determine the time limits that would 14 govern future habeas actions); U.S. v. Cook, 795 F.2d 987, 994 (Fed. Cir. 1986) 15 (district court erred by tolling statute of limitations in advance of the filing of 16 potentially untimely claims). 17 Petitioner contends he needs additional time to seek help to file a habeas 18 petition, as language difficulties, lack of legal knowledge and education, and the 19 limitations of the prison law library have hampered his efforts to file a petition 20 himself. If and when petitioner files a habeas petition in this Court, and if the 21 timeliness of that petition is questioned, this Court can consider whether petitioner 22 is entitled to statutory tolling under 28 U.S.C. § 2244(d)(2) or to equitable tolling. 23 But those are matters that cannot be decided at this juncture. 24 // 25 // 26 // 27 28 2 1 IT IS THEREFORE ORDERED that petitioner’s Motion for Extension of 2 || Time to file a habeas corpus petition is DENIED, and that Judgment be entered 3 || summarily dismissing this action without prejudice. 4 fa. rg Ln? 5 || DATED: January 25, 2018 > Vy 2 oy Jo LE. 6 □ 7 HONORABLE STEPHEN V. WILSON UNITED STATES DISTRICT JUDGE Presented by:

11 12 | UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28