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Albin v. CDCR

United States District Court, S.D. California

April 25, 2017

SHAWN ALBIN, Petitioner
v.
CDCR, Respondent.

          ORDER

          HAYES, Judge

         The 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).

         I. Background

         On 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 latest of:
(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 (2001).

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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