Opinion
No. C 01-1991 SI (pr)
May 23, 2001
ORDER DENYING REQUEST FOR EXTENSION OF TIME AND DISMISSING ACTION
Tamiko Burgess apparently wishes to challenge his state court conviction. Rather than filing a petition for writ of habeas corpus, he filed a letter and request for an extension of time to file a petition for writ of habeas corpus. Burgess allegedly needs the extension of time because the prison at which he is incarcerated is on lockdown. He does not indicate when or where he was convicted, whether his state post-conviction remedies have been exhausted, or when the conviction became final. Even without this very basic information, the court can determine that the relief requested by Burgess cannot be granted.
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)). Burgess is requesting an advisory opinion. There is no party adverse to Burgess before this court. And there is no concrete dispute for this court to decide: Burgess' request in essence asks the court to determine in advance whether his petition 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 Burgess 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 Burgess 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 a ointment 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 Burgess 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). Burgess' document requests additional time to file a petition and cannot be construed as the petition itself.
For the foregoing reasons, the request for an extension of time is DENIED. This action is DISMISSED. The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT
This action is dismissed because it does not satisfy the case or controversy requirement of Article III, Section 2, of the United States Constitution.
IT IS SO ORDERED.