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Rodney D. Mitchell v. Unknown

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 4, 2013

RODNEY D. MITCHELL, PETITIONER,
v.
UNKNOWN, RESPONDENT.

ORDER

Petitioner is a state prisoner without counsel. He has filed a document with the court indicating that he is currently exhausting his state court habeas remedies and that he is concerned about the statute of limitations for seeking federal habeas relief. Dckt. No. 1. Petitioner explains that he wishes to provide this court with notice of his intent to file a federal habeas petition and requests the proceeding be stayed. Id. The filing does not contain any claims for relief.

Petitioner's filing only signals his intent to file a petition; it does not act as a protective petition for purposes of the Anti-Terrorism and Effective Death Penalty Act of 1996's one-year statute of limitation. Furthermore, to commence a civil action, a party is required to file a complaint or petition. Fed. R. Civ. P. 3; Rule 3, Rules Governing § 2254 Cases. Petitioner's filing constitutes neither. If petitioner wishes to proceed with this case, he must file a petition. Once a petition is filed, petitioner may request the proceeding be stayed.

Accordingly, it is hereby ORDERED that:

1. Petitioner shall file a petition for writ of habeas corpus within 30 days of the date of this order;

2. Petitioner is warned that failure to do so will result in this case being closed; and 3. The Clerk of the Court is directed to send petitioner the court's form for application for writ of habeas corpus.

20130104

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