The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DENYING MOTION FOR EXTENSION OF TIME AND DENYING MOTION FOR STAY AND ABEYANCE; and
NOTICE REGARDING POSSIBLE DISMISSAL FOR FAILURE TO SATISFY FILING FEE REQUIREMENT AND FAILURE TO USE COURT- APPROVED PETITION FORM
Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, accompanied by a Motion for Extension of Time and a Motion for Stay and Abeyance. Petitioner has not paid the $5.00 filing fee and has not filed an application to proceed in forma pauperis. Petitioner has also failed to use a court-approved habeas petition form. For the following reasons, the Court denies the Motion for Extension of Time and the Motion Stay and Abeyance, and notifies Petitioner that failure to satisfy the filing fee requirement and failure to submit an amended petition on a court-approved form will result in dismissal of this action.
FAILURE TO SATISFY FILING FEE REQUIREMENT
This Court cannot proceed until Petitioner has either paid the $5.00 filing fee or qualified to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foll. § 2254. Petitioner is advised that in order to avoid dismissal of his case, he must either pay the $5.00 filing fee or submit an application to proceed in forma pauperis no later than September 12, 2011. If Petitioner does not pay the $5.00 filing fee or submit an application to proceed in forma pauperis by that date, this case will be dismissed without prejudice, and Petitioner will have to begin again by filing a new petition which may be barred by the statute of limitations.*fn1
FAILURE TO USE PROPER FORM
Additionally, a Petition for a Writ of Habeas Corpus must be submitted in accordance with the Local Rules of the United States District Court for the Southern District of California. See Rule 2(d), 28 U.S.C. foll. § 2254. In order to comply with the Local Rules, the Petition must be submitted upon a court-approved form and in accordance with the instructions approved by the Court. Id.; S. D. CAL. CIVLR HC.2(b). Presently, Petitioner has not submitted his application for writ of habeas corpus on a court-approved form. Petitioner is advised that in order to avoid dismissal of his case, he must submit a First Amended Petition on a court-approved form no later than September 12, 2011.
MOTION FOR EXTENSION OF TIME
Petitioner requests an extension of time to file his federal habeas petition, indicating that he is "out to court in San Diego County on a child custody hearing and is without legal property, (i.e.) trial transcripts to support claims." (Mot. at 1.) Petitioner appears to be concerned that because the California Supreme Court denied his petition for review almost exactly one year ago, the one-year statute of limitations applicable to habeas petitions filed pursuant to 28 U.S.C. § 2254 will expire before he is returned to the prison where his legal materials are located, which he apparently needs in order to file a complete federal habeas petition. Although the Court makes no determination with respect to the statute of limitations at this time (such a determination will occur at a later stage of the proceedings if necessary), it appears from the information presently before the Court that the one-year statute of limitations in this case is not set to expire for approximately another three months.*fn2
Furthermore, if Petitioner has additional claims he wishes to exhaust in state court, as his filing of a Motion for Stay and Abeyance would suggest, the statute of limitations might well be tolled during his state court post-conviction collateral proceedings. (See footnote 1, supra.) Thus, Petitioner has not at this time demonstrated a need for an extension of time. In any case, this Court does not have the authority to extend the statute of limitations, which is governed by the triggering events and tolling provisions listed in footnote 1 above. Accordingly, Petitioner's Motion for Extension of Time is DENIED.
MOTION FOR STAY AND ABEYANCE
Petitioner has also filed a Motion for Stay and Abeyance. In Rhines v. Weber the Supreme Court held that District Courts have limited discretion to hold in abeyance a mixed habeas petition, that is, one containing both exhausted and unexhausted claims, in order to permit a petitioner to return to state court to exhaust additional claims while the federal proceedings are stayed. Rhines, 125 S.Ct. at 1534-35. The Rhines Court held that "a stay and abeyance 'should be available only in limited circumstances,' and is appropriate only when the district court determines that there was 'good cause' for the failure to exhaust." Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005) (quoting Rhines, 125 S.Ct. at 1535).
Petitioner has not identified any unexhausted claims he wishes to return to state court to exhaust while the Petition is held in abeyance, and has not alleged good cause for his failure to exhaust any potentially unexhausted claims. In fact, Petitioner has not indicated that he has exhausted his state court remedies with respect to the one claim he has presented in his Petition, perhaps due to his failure to use a court-approved form. According, the Motion for Stay and Abeyance is DENIED without prejudice to Petitioner to renew his Motion, if he wishes, after he has filed his First Amended Petition.
The Court cautions Petitioner that habeas petitioners who wish to challenge either their state court conviction or the length of their confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state judicial remedies, a California state prisoner must present the California Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. Moreover, to properly exhaust state court remedies a petitioner must allege, in state court, how one or more of his or her federal rights have been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: "If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution." Id. at 365-66 (emphasis added). For example, "[i]f a ...