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Vonnie Ross Edwards v. Kamala Harris
April 2, 2012
VONNIE ROSS EDWARDS,
KAMALA HARRIS, RESPONDENT.
The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING PETITION
WITHOUT PREJUDICE AND WITH LEAVE TO AMEND
On March 28, 2012, petitioner filed a document entitled "Application for Enlargement of Time to File Petition For Writ of Habeas Corpus." Petitioner seeks an order staying the petition until "impediments," which are "thwarting petitioner's timely filing of his federal habeas corpus action" are removed. [Application at 2]. The application indicates that petitioner has been deprived of his legal documents, which are in the possession of another inmate. [Application at 2]. Liberally construing the document as a habeas petition, it is subject to summary dismissal.
As pleaded, the petition does not present any claims. Although petitioner sets forth numerous claims he would like to bring in the future, it does not appear petitioner intends to raise them now, nor is it clear whether the claims petitioner sets forth have been presented to the California Supreme Court such that they are exhausted. See 28 U.S.C. §2254(b)(1)(A) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State.").
To the extent that petitioner seeks application of statutory or equitable tolling to any future federal petition he may elect to file, see 28 U.S.C. §2244(d)(2); Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288-1289 (9th Cir. 1997), cert. denied, 522 U.S. 1099 & 523 U.S. 1061 (1998), overruled on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060 (1999), such a request is premature.*fn1 Petitioner has not yet filed a proper federal petition challenging his conviction or sentence. Further, at this stage, whether the state will raise the defense of the statute of limitation pursuant to 28 U.S.C. §2244(d) if petitioner does file a federal petition is purely speculative. The timeliness of any federal petition properly filed by petitioner should be considered if and when petitioner files such a petition. Thus, the issue of petitioner's entitlement to the application of statutory or equitable tolling is not ripe for determination.
The petition filed by petitioner is dismissed without prejudice and with leave to amend. Petitioner shall have twenty-eight (28) days from the date of this order within which to file an amended habeas petition on the forms provided by the clerk. The amended petition shall bear case number CV 12-2700-RGK(AJW) and shall set forth each of petitioner's claims for relief. It also shall indicate which claims have been presented to the California Supreme Court and which have not. At the time he filed his petition, petitioner also may file a motion to stay the petition pending exhaustion of state remedies.
Petitioner is cautioned that failure to comply with this order within the deadline may result in dismissal of this action.
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