The opinion of the court was delivered by: Hon. James V. Selna United States District Judge
ORDER DENYING MOTION FOR EXTENSION OF TIME TO FILE HABEAS PETITION, SUMMARILY DISMISSING ACTION WITHOUT PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
On August 17, 2012, petitioner Frederick Brown ("Petitioner") filed a "Motion Request for Extension of Time" ("Motion"). In the Motion, Petitioner seeks an extension of time to file a petition for writ of habeas corpus -- before actually filing the petition itself. (Mot. at 1-2.)
The exercise of federal jurisdiction under the Constitution depends on the existence of a case or controversy. If the Court does not have an actual case or controversy before it, the Court lacks the power to hear the matter in question. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) ("It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy.").
Here, there is no case or controversy. Petitioner's Motion is not tied to any action currently pending before this Court. Instead, Petitioner essentially seeks an improper advisory opinion regarding the timeliness of an anticipated habeas petition, if and when that petition is filed at some unspecified date in the future. Such a request cannot be entertained by the Court without offending the Constitution's case or controversy requirement. McDade v. Warden, 2010 WL 4795377, at *1-2 (C.D. Cal. Nov. 16, 2010) (holding that request for extension of time to avoid statutory limitations period does not present a case or controversy); Soto v. Warden, 2009 WL 1705471, at *1-2 (C.D. Cal. June 16, 2009) (adopting recommendation that request for extension of time be dismissed because federal court lacked jurisdiction to consider it); United States v. Leon, 203 F.3d 162, 164 (2d Cir. 2000) (per curiam) (holding that federal court lacked jurisdiction to consider the timeliness of a § 2255 petition because no petition had yet been filed).
If Petitioner submits a proper habeas petition, the Court will then consider the timeliness of that petition, but not before.
II.CERTIFICATE OF APPEALABILITY
The Court finds that Petitioner has not shown that jurists of reason would find it debatable whether the Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, the Court declines to issue a certificate of appealability.
For the foregoing reasons, IT IS HEREBY ORDERED that: (1) Petitioner's Motion is DENIED; (2) a certificate of appealability is DENIED; and(3) this action is SUMMARILY DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
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