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Salgado v. Baca

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION


June 25, 2010

VICTOR A. SALGADO, PETITIONER,
v.
LEE ROY BACA, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Jacqueline H. Nguyen United States District Judge

Date: June 17, 2010

MEMORANDUM AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

On May 3, 2010, pro se petitioner, held in Los Angeles County Jail, filed a three-page application for an extension of time to file a federal petition for writ of habeas corpus. Petitioner does not allege any claims. Rather, petitioner states that he does not have trial transcripts and other documents that will allow him to timely file a habeas petition. Petitioner further states that he may be entitled to equitable tolling, based on his not having his legal materials because of his placement in administrative segregation.

A Petition for Writ of Habeas Corpus can only be issued if petitioner is in state custody and that such custody is in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(c). Petitioner fails to allege any claim(s), much less any claims which go to the fact or duration of petitioner's confinement. See Preiser v. Rodriguez, 411 U.S. 475, 489, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Thus, petitioner has not allege any claim(s) cognizable in habeas corpus.

Moreover, to the extent that petitioner is seeking an extension of time and/or equitable tolling based on his lack of access to his legal materials because of his placement in administrative segregation, the Court has no basis for determining whether and extension of time and/or equitable tolling is appropriate. See Pace v. Diguglielmo, 544 U.S. 408, 416, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (noting a situation in which a "protective" federal habeas petition would be appropriate). Since petitioner has not filed a Petition alleging any cognizable claims, the Court does not need to address this issue.

Since petitioner does not state a claim for relief under 28 U.S.C. § 2254, dismissal of the Petition is warranted.

IT IS ORDERED as follows:

1. The Petition is dismissed without prejudice; and

2. The Clerk shall mail a copy of this Order to petitioner and respondent.

Presented by: Date: June 17, 2010 STEPHEN J. HILLMAN UNITED STATES MAGISTRATE JUDGE

20100625

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