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IN RE SCHICK

United States District Court, N.D. California


January 21, 2004.

In re: WAYNE SCHICK, Petitioner

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER OF DISMISSAL

This action consists entirely of a "Motion for Extension of Time to File Petition for Writ of Habeas Corpus," by which petitioner seeks to toll the statute of limitations in order to file a federal habeas petition in the future. Article III, Section 2 of the United States Constitution restricts adjudication in federal courts to "Cases" and "Controversies." See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982). In the absence of an actual petition for a writ of habeas corpus or other civil complaint, there is no case or controversy for this Court to adjudicate. Moreover, the Court cannot discern from the filing herein whether petitioner can meet even the most basic requirements for proceeding with a habeas petition in this Court, such as jurisdiction and venue. Finally, petitioner may seek relief from the statute of limitations under 28 U.S.C. ยง 2244(d) once he files a petition in federal court. The Court cannot provide such relief prospectively where, as here, no petition exists.

Accordingly, the above-entitled action is hereby DISMISSED without prejudice to petitioner's filing a petition for a writ of habeas corpus or a complaint for other relief.

  This order terminates all pending motions. The Clerk shall close the file.

  IT IS SO ORDERED.

  JUDGMENT IN A CIVIL CASE

  [] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

  [X] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS ORDERED AND ADJUDGED the above-entitled action is hereby DISMISSED without prejudice to petitioner's filing a petition for a writ of habeas corpus or a complaint for other relief.

20040121

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