Opinion
3:21-cv-126-LC-MJF
01-21-2021
RUSSELL LEE ENFINGER. Petitioner, v. DEPARTMENT OF CORRECTIONS SECRETARY, Respondent.
REPORT AND RECOMMENDATION
Michael J. Frank, United States Magistrate Judge
This cause is before the court upon Petitioner filing a “Motion for Enlargement of Time.” (Doc. 1). Petitioner seeks an order “allow[ing] an additional 90 (ninety) days to be added to the time left for the Petitioner to file his habeas corpus motion” under 28 U.S.C. § 2254. (Id. at 2). Petitioner has not filed an actual habeas petition under § 2254, and his motion for enlargement of time does not contain allegations sufficient to support a claim for relief under § 2254. The undersigned concludes that this court lacks jurisdiction to consider Petitioner's motion.
The District Court referred this case to the undersigned for preliminary review under Local Rule 72.2(B), and Habeas Rule 4, and to make recommendations concerning dispositive matters. See 28 U.S.C. § 636(b); N.D. Fla. Loc. R. 72.2(B); Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
“Federal courts do not lightly grant relief in non-existent cases. Still less do they offer advisory opinions about what they might do if an action were filed.” United States v. Asakevich, 810 F.3d 418, 420-21 (6th Cir. 2016) (holding that prisoner could not ask the district court to grant an extension of time to file a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 before a § 2255 motion was actually filed; prisoner was seeking an advisory opinion concerning whether he could obtain an extension for a collateral proceeding not yet in existence); see also Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001) (holding that a federal court may grant an extension of time to file a § 2255 motion only if the moving party requests the extension “upon or after filing an actual section 2255 motion”) (emphasis added); Swichkow v. United States, 565 Fed.Appx. 840, 844 (11th Cir. 2014) (“Here, because Swichkow had yet to file an actual § 2255 motion at the time he sought an extension to the limitations period, there was no actual case or controversy to be heard. Thus, the district court properly concluded that it lacked jurisdiction to consider Swichkow's requests for an extension of time to file a § 2255 motion absent a formal request for habeas relief.”).
As this court lacks jurisdiction to rule on any procedural or substantive matters before an actual habeas petition is filed, this action should be dismissed.
For the reasons set forth above, the undersigned respectfully RECOMMENDS that:
1. This case be DISMISSED for lack of jurisdiction.
2. The clerk of the court close this case file and send Petitioner the form petition for use in § 2254 cases.
At Tallahassee, Florida, this 21st day of January, 2021.