Voss v. Baca

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 STEVEN FLOYD VOSS, Case No. 3:19-cv-00414-MMD-WGC

7 Petitioner, ORDER v. 8

9 JACKIE CRAWFORD, et al.,

10 Respondents.

12 This habeas matter comes before the Court on a pending sua sponte inquiry into 13 whether pro se Petitioner’s petition for writ of habeas corpus (ECF No. 1) is subject to 14 dismissal. This order follows a prior order to show cause (“OSC”) (ECF No. 9) and 15 Petitioner’s response (ECF No. 10). For the reasons discussed below and in the OSC, the 16 Court dismisses this action without prejudice. 17 The OSC outlines the relevant facts and procedural background. (ECF No. 10.) In 18 short, the Court explained that Petitioner’s current petition is premature and unexhausted 19 as no valid judgment of conviction currently exists for CR96-1581, and Petitioner has yet 20 to be resentenced. Because no amended judgment has been entered, Petitioner’s 21 constitutional claims are currently speculative. The one-year statute of limitations under 22 the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254, will not start, and his 23 habeas claim will not accrue, until an amended judgment of conviction is entered and 24 becomes final. See Redd v. McGrath, 343 F.3d 1077, 1081–83 (9th Cir. 2003). 25 Petitioner’s response concedes that he was “overly cautious” in filing his “protective 26 petition.” (ECF No. 10 at 2.) Thus, he declines to make a showing of good cause to allow 27 the petition to proceed. (Id.) However, he requests leave of the Court to file a new petition 28 in the instant case at a later date, should a new petition become necessary. (Id. at 3.) 1 The Court cannot give Petitioner an advisory ruling concerning the propriety of any 2 || future habeas petition. Article II of the Constitution restricts the power of federal courts to 3 || live cases and controversies. Chafin v. Chafin, 568 U.S. 165, 171 (2013). Thus, federal 4 || courts may not “give ‘opinion[s] advising what the law would be upon a hypothetical state 5 || of facts’.” /d. at 172 (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)):; 6 || Clark v. City of Seattle, 899 F.3d 802, 808 (9th Cir. 2018) (federal courts cannot “issue 7 || advisory opinions”). By finding that Petitioner's current petition is premature and 8 || unexhausted, the Court makes no finding or representation that a future petition will be 9 || considered either timely or exhausted. Petitioner at all times remains responsible for 10 || calculating the running of the federal limitation period under 28 U.S.C. § 2244(d)(1) and 11 || timely asserting and exhausting claims. 12 Given the multiple substantial defects presented, which Petitioner acknowledges in 13 || his response, this matter will be dismissed without prejudice. Dismissal of this action 14 || without prejudice will not materially impact the analysis of any issue in a later filed habeas 15 || proceeding or otherwise result in substantial prejudice. 16 It is therefore ordered that Petitioner’s petition for writ of habeas corpus (ECF No. 1) 17 || is dismissed without prejudice as premature and unexhausted. 18 It is further ordered that a certificate of appealability is denied as jurists of reason 19 || would not find the Court’s dismissal of the petition to be debatable or wrong. 20 It is further ordered that the Clerk of Court is directed to enter final judgment 21 || accordingly, dismissing this action without prejudice, and close this case. 22 DATED THIS 15" day of November 2019. 23 □□ 24 ALY 25 □□□□□□□□□□□□□□□□□□□□□□□□ 36 CHIEF UNITED STATES DISTRICT JUDGE

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