The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge
ORDER DENYING APPLICATION FOR ENLARGEMENT OF TIME FOR LACK OF JURISDICTION
Christina Sajor-Reeder ("Sajor-Reeder"), a California state prisoner proceeding pro se, apparently wishes to challenge her state court conviction by seeking federal habeas relief. Rather than filing a petition for writ of habeas corpus, Sajor-Reeder filed a document in which she states that she wishes to receive an extension of time until September 2011 to seek federal habeas relief ("Application"). By the Application, she apparently seeks an extension of the one-year limitations period, under 28 U.S.C. § 2244(d)(1), for filing a federal habeas petition. After reviewing the Application, the Court has determined that the relief requested cannot be granted.
Under the "case or controversy" requirement of Article III, Section 2 of the United States Constitution, federal courts may not issue advisory opinions. See Princeton University v. Schmid, 455 U.S. 100, 102, 102 S. Ct. 867, 869 (1982). As Sajor-Reeder has not actually filed a federal habeas petition challenging her conviction and/or sentence, there is no case or controversy before the Court, and she essentially seeks an advisory opinion. See Calderon v. Ashmus, 523 U.S. 740, 746, 118 S. Ct. 1694, 140 L. Ed. 2d 970 (1998) (actual "controversy" in 28 U.S.C. § 2254 action is whether petitioner is entitled to have the conviction or sentence imposed by the state court set aside).
By the Application, Sajor-Reeder asks the Court to decide prospectively whether her habeas petition will be time-barred when filed at some unspecified future date, without any adverse parties before it and without any information on which to base any conclusion that such a filing properly will fall within the one-year limitations period, even as extended. The Court cannot grant Sajor-Reeder the prospective relief she seeks without offending the case or controversy requirement of the Constitution.
The Court notes further that, even if it had jurisdiction to consider
the relief requested, Sajor-Reeder has not shown any entitlement to
such relief. In light of the allegations in the Application that
Sajor-Reeder is proceeding pro se and has been "out to court" for a
period of time, it may be that she seeks an order that she will be
entitled to equitable tolling of her limitations period should she
seek federal habeas relief in the future through a petition which is
untimely under Section 2244(d)(1). The one-year statute of limitations
set forth in Section 2244(d)(1) may be subject to equitable tolling
"if 'extraordinary circumstances' beyond a prisoner's control make it
impossible to file a petition on time." Calderon v. United States
District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997),
overruled in part on other grounds, Calderon v. United States District
Court (Kelly V), 163 F.3d 530, 540 (9th Cir. 1998).*fn1
However, the Ninth Circuit noted in Beeler that "equitable
tolling will not be available in most cases." Id. Sajor-Reeder has not
yet established any "extraordinary circumstances" beyond her control
which have prevented her from timely filing a habeas petition, and it
would be inappropriate for this Court to render any ruling on the
equitable tolling question based on the inadequate record before
Should Sajor-Reeder hereafter file her habeas petition and should the respondent raise the one-year limitations period as a bar to relief, Sajor-Reeder may then make her equitable tolling argument. At that point, the Court may consider whether the Section 2244(d)(1) limitations period can be tolled.
Based upon the foregoing, IT IS ORDERED that the Application is DENIED and that Judgment be entered dismissing this action without prejudice for lack of jurisdiction.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on Sajor-Reeder.
LET JUDGMENT BE ENTERED ACCORDINGLY.
FREDERICK F. MUMM United States ...