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Albin v. CDCR
United States District Court, S.D. California
April 25, 2017
SHAWN ALBIN, Petitioner
matters before the Court are the “Notice of Change of
Address/Motion for Status of Case” (ECF No. 8) and the
“Motion to Vacate” filed by Petitioner Shawn
Albin (ECF No. 10).
October 19, 2016, Petitioner initiated this action by filing
a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. (ECF No. 1). Petitioner concurrently filed a
Motion for Stay and Abeyance. (ECF No. 2). On November 8,
2016, this Court dismissed the Petition without prejudice and
with leave to amend. The Court concluded that Petitioner had
not paid the filing fee or qualified to proceed in forma
pauperis and had failed to state grounds for relief. (ECF No.
4). In the Order, the Court determined that Petitioner's
Motion for Stay and Abeyance was “essentially asking
for an extension of the one-year statute of
limitations.” Id. at 2. The Order stated,
The Court is without jurisdiction to extend the one-year
statute of limitations of 28 U.S.C. § 2244(d)(1)(A)-(D),
which provides that the limitation period runs from the
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A)-(D) (2008).
The statute of limitations does not run while a properly
filed state habeas corpus petition is pending. 28 U.S.C.
§ 2244(d)(2); see Nino v. Galaza, 183 F.3d
1003, 1006 (9th Cir. 1999). But see Artuz v.
Bennett, 531 U.S. 4, 8 (2000) (holding that “an
application is ‘properly filed' when its delivery
and acceptance [by the appropriate court officer for
placement into the record] are in compliance with the
applicable laws and rules governing filings.”).
However, absent some other basis for tolling, the statute of
limitations does run while a federal habeas petition is
pending. Duncan v. Walker, 533 U.S. 167, 181-82
Id. at 2-3. The Court further concluded that the
Motion for Stay and Abeyance failed to satisfy the
Rhines requirements. See Rhines v. Webber,
544 U.S. 269, 277-78 (2005).
The Order stated, If Petitioner wishes to proceed with this
case, he must, no later than February 13, 2017: (1) pay the
$5.00 filing fee OR submit adequate proof of his inability to
pay the fee; AND (2) file First Amended Petition that
adequately states grounds for relief. . . . Petitioner may
resubmit a motion for stay with any amended petition.
Petitioner is ...
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