Summary
holding that court cannot give legal advice to prospective or actual habeas petitioners
Summary of this case from Johnson v. WallOpinion
No. C 01-2851 SI (pr)
August 17, 2001
ORDER OF DISMISSAL
Michael Best apparently wishes to challenge his state court criminal conviction. Rather than filing a petition for writ of habeas corpus, he filed an untitled document in which he complained about the difficulties he has had in challenging his criminal conviction. He explained that he was trying to do his best but was untrained in the law and wrote: "my time may have expired but it is not my fault, so I write for advice and to throw my self on the mercy of the courts." Document filed July 1, 2001. The clerk filed the document as a new action, assigned a case number and sent to Best a letter stating that he needed to file an in Forma Pauperis application or the action would be dismissed. Best then wrote a letter to the court stating that he had not intended to file a complaint or anything else; rather, his first document was a letter requesting information regarding filing a federal action. He believed that ""no action' was actually filed on July 25, 2001." Letter filed Aug. 14, 2001. As is the case with many documents the court receives from prisoners, it is somewhat uncertain what Best intended the original document filed on July 1, 2001 to accomplish.
To the extent Best's original document is construed as a request for the court's form habeas petition, the court can accommodate that request. The clerk will send to Best the court's form habeas petition so that he may file a habeas petition.
To the extent Best's original document is construed as a request for assistance in the preparation of a habeas petition, the court cannot accommodate the request. The court cannot give legal advice to prospective or actual habeas petitioners. The court notes, however, that the form habeas petition being sent to Best does contain some directions which will guide him in the preparation of the petition. The court will not consider appointing counsel to give legal advice to a habeas petitioner until the petitioner has filed a habeas petition so that the court can determine that the petition has been filed in the right court and meets the basic requirements for a habeas action, such as exhaustion of state court remedies and compliance with the statute of limitations. Only after a habeas petition has been filed will the court consider a request for the appointment of counsel.
Finally, to the extent Best's original document is construed as a request for a waiver of the habeas statute of limitations deadline, see 28 U.S.C. § 2244(d), the court cannot accommodate the request. Under general principles derived from the "case or controversy" requirement of Article III, Section 2, of the United States Constitution, a federal court may not issue advisory opinions. See United States v. Cook, 795 F.2d 987, 994 (Fed. Cir. 1986) (district court erred in tolling statute of limitations as to future claims by persons not party to the case before the court). Federal courts do not "`sit to decide hypothetical issues or to give advisory opinions about issues as to which there are not adverse parties before [them].'" Id. (quoting Princeton University v. Schmid, 455 U.S. 100, 102 (1982)). There is no concrete dispute for this court to decide: any request by Best for a waiver of a deadline in essence asks the court to determine in advance whether his petition for writ of habeas corpus will be time-barred if it is filed at some unspecified date in the future which may or may not be within the one-year period prescribed by 28 U.S.C. § 2244(d). This court could not grant the requested relief without offending the Constitution's case or controversy requirement. Although Best obtains no relief today, he is not forever barred from requesting relief. See Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997) (Section 2244(d) is subject to equitable tolling, although such tolling will not be available in most cases because extensions of time should only be granted if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time), cert. denied, 523 U.S. 1, and cert. denied, 523 U.S. 1061 (1998), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060 (1999). If and when Best files a late habeas petition, he may make his tolling argument. At that point, and not before then, the court will consider whether the statute of limitations should be tolled.
Although Beeler considered a request for extension of time to file a habeas petition made in advance of the filing of the petition, Beeler is distinguishable in that it was a death penalty habeas case in which the petitioner had filed a request or appointment of counsel and stay of execution. In death penalty habeas actions, the filing of a request for counsel constitutes the commencement of a habeas action. See McFarland v. Scott, 512 U.S. 849 (1994). By contrast, the document filed by Best cannot be interpreted as a petition for writ of habeas corpus which would commence a habeas action. See Rule 2(a) and (c) of the Rules Governing Section 2254 Cases (application for writ of habeas corpus shall be in the form of a petition which specifies each ground for relief which is available to the petitioner and the factual basis for each ground for relief).
There is no case or controversy over which the court may exercise jurisdiction. The action is therefore DISMISSED. The clerk shall close the file.
IT IS SO ORDERED.
JUDGEMENT
This action is dismissed for lack of subject matter jurisdiction.
IT IS SO ORDERED AND ADJUDGED