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Alexander Alvares v. Mcewen
May 4, 2012
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 April 27, 2012, petitioner filed a document entitled "Notice of Motion to Stay." Petitioner seeks an order staying his petition for a writ of habeas corpus pending his exhaustion of state remedies. [Motion at 1-2]. Liberally construing the document as a petition for a writ of habeas corpus, it is subject to summary dismissal.
As pleaded, the petition fails to provide basic essential information, such identifying the conviction petitioner seeks to challenge and describing where and when that conviction occurred. It also fails to allege any claims for relief, and does not state whether petitioner has exhausted any of his claim by presenting them to the California Supreme Court. 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 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 proper 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.
For these reasons, the petition 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 12-3675-DMG(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 files his amended petition, he also may file a motion to stay the petition pending exhaustion of state remedies.
Petitioner is cautioned that failure to timely comply with this order may result in dismissal of this action without prejudice.
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