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Debose v. People

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION


October 25, 2010

ROY DEBOSE, PETITIONER,
v.
THE PEOPLE OF THE STATE OF CALIFORNIA, RESPONDENT.

The opinion of the court was delivered by: John F. Walter United States District Judge

MEMORANDUM AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

On October 20, 2010, pro se petitioner, in state custody, filed what the Court construes as a motion 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 may not be able to file a timely habeas petition because of his mental illness.

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 mental illness, the Court has no basis for determining whether an 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: October 21, 2010

STEPHEN J. HILLMAN UNITED STATES MAGISTRATE JUDGE

20101025

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