ORDER DENYING APPLICATION FOR ENLARGEMENT OF TIME FOR LACK OF JURISDICTION
Jesus Lopez ("Petitioner"), a California state prisoner proceeding pro se, apparently wishes to challenge his state court conviction by seeking federal habeas relief. Rather than filing a petition for writ of habeas corpus, Petitioner filed a document in which he states that he wishes to receive a 90 day extension of time to seek federal habeas relief ("Application"). By the Application, Petitioner 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 Petitioner has not actually filed a federal habeas petition challenging his conviction and/or sentence, there is no case or controversy before the Court, and he 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, Petitioner asks the Court to decide prospectively whether his 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 Petitioner the prospective relief he 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, Petitioner has not shown any entitlement to such
relief. Although not expressly stated in the Application, it may be
that Petitioner seeks an order that he will be entitled to equitable
tolling of his limitations period should he 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. Petitioner has not
yet established any "extraordinary circumstances" beyond his control
which have prevented him 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 Petitioner hereafter file a habeas petition and should the respondent raise the one-year limitations period as a bar to relief, Petitioner may then make an 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 Petitioner.
LET JUDGMENT BE ENTERED ACCORDINGLY.
FREDERICK F. MUMM United States Magistrate Judge
STEPHEN V. WILSON United States ...