United States District Court, N.D. California
January 28, 2004.
ROBERT BUCKLEY, Petitioner,
Mr. YARBOROUGH, Warden, Respondent
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
This action is dismissed because there is no case or controversy over
which the court may exercise jurisdiction.
IT IS SO ORDERED AND ADJUDGED
ORDER OF DISMISSAL
Robert Buckley apparently wishes to challenge his state court criminal
conviction. Rather than filing a petition for writ of habeas corpus, he
filed an "Request For Extension Of Time To File Writ Of Habeas Corpus,"
in which he requests additional time to file his federal habeas petition
because he has been in administrative segregation, was unable to obtain
his legal materials, has not had adequate access to his prison's law
library, and will soon be transferred.
The court cannot provide the requested extension of time on the habeas
statute of limitations deadline, see 28 U.S.C. § 2244(d).
Under general principles derived from the "case or controversy"
requirement of Article III, Section 2, of the United States Constitution,
a federal court may not issue advisory opinions. See United States
v. Cook, 795 F.2d 987, 994 (Fed. Cir. 1986) (district court erred in
tolling statute of limitations as to future claims by persons not party
to the case before the court). Federal courts do not "sit to decide
hypothetical issues or to give advisory opinions about issues as to which
there are not adverse parties before [them].'" Id. (quoting
Princeton University v. Schmid, 455 U.S. 100, 102 (1982)).
There is no concrete dispute for this court to decide: Buckley's request
in essence asks the court to determine in
advance whether his petition for writ of habeas corpus will be
time-barred if it is filed at some unspecified date in the future which
may or may not be within the one-year period prescribed by
28 U.S.C. § 2244(d). This court could not grant the requested relief without
offending the Constitution's case or controversy requirement. Although
Buckley obtains no relief today, he is not forever barred from requesting
relief. See Calderon v. United States Dist. Court (Beeler)
128 F.3d 1283, 1288-89 (9th Cir. 1997) (Section 2244(d) is subject to
equitable tolling, although such tolling will not be available in most
cases because extensions of time should only be granted if extraordinary
circumstances beyond a prisoners control make it impossible to file a
petition on time), cert. denied, 522 U.S. 1099. and cert.
denied, 523 U.S. 1061 (1998), overruled in part on other
grounds by Calderon v. United States District Court (Kelly),
163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied 526 U.S. 1060
(1999). If and when Buckley files a late habeas petition, he may make his
tolling argument. At that point, and not before then, the court will
consider whether the statute of limitations should be tolled. The request
for an extension of time is DENIED. (Docket # 1.)
There is no case or controversy over which the court may exercise
jurisdiction. The action is therefore DISMISSED. The clerk shall close
IT IS SO ORDERED.
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