Nelson Turcios v. Unknown
Filing
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ORDER DISMISSING CASE by Judge Margaret M. Morrow, IT IS HEREBY ORDERED that this action be DISMISSED without prejudice. re REQUEST to Extend Time to file 28:2254 petition to 6/22/2012 1 Case Terminated. Made JS-6. (lmh)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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NELSON TURCIOS,
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Petitioner,
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v.
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UNKNOWN,
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Respondent.
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Case No. CV 12-4055-MMM (JEM)
ORDER SUMMARILY DISMISSING
HABEAS ACTION WITHOUT PREJUDICE
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On May 9, 2012, Nelson Turcios (“Petitioner”), a prisoner in state custody proceeding
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pro se, filed a motion for extension of time to file a petition for writ of habeas corpus
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(“Motion”). For the reasons set forth below, the Motion is denied and this matter is
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dismissed without prejudice.1
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DISCUSSION
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“‘The exercise of judicial power under Art. III of the Constitution depends on the
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existence of a case or controversy,’ and ‘a federal court [lacks] the power to render advisory
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opinions.’” U.S. Nat’l Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S.
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439, 446 (1993) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)); see also Flast v.
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Cohen, 392 U.S. 83, 94 (1968) (“The jurisdiction of federal courts is defined and limited by
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The reference to the Magistrate Judge is hereby vacated.
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Article III of the Constitution. . . . [T]he judicial power of federal courts is constitutionally
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restricted to ‘cases’ and ‘controversies.’”).
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Petitioner has not filed a federal habeas petition challenging the fact or duration of his
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confinement. There are no adverse parties and no concrete dispute for the Court to
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adjudicate. Petitioner essentially seeks an advisory opinion regarding the potential
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timeliness of any federal habeas petition that he might file in the future, which the Court
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lacks the authority to issue. See Calderon v. Ashmus, 523 U.S. 740, 746–748 (1998) (no
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justiciable question where petitioners seek advance ruling on statute of limitations defense;
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actual “controversy” in 28 U.S.C. § 2254 action is whether petitioner is entitled to have his
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state-imposed conviction or sentence set aside).
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If Petitioner files a federal habeas petition in the future, and if the respondent
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challenges the timeliness of that petition, Petitioner may choose to seek equitable tolling of
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the limitations period. The one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1)
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is subject to equitable tolling if a petitioner can demonstrate that “extraordinary
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circumstances” beyond his control made it impossible to file his petition in a timely manner.
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See Holland v. Florida, –– U.S. ––, 130 S. Ct. 2549, 2562 (2010). However, the Court
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cannot determine whether Petitioner would be entitled to equitable tolling at this stage of the
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proceedings.
ORDER
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IT IS HEREBY ORDERED that this action be DISMISSED without prejudice.
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IT IS SO ORDERED.
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DATED: May 24, 2012
MARGARET M. MORROW
UNITED STATES DISTRICT JUDGE
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Presented by:
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/s/ John E. McDermott
John E. McDermott
United States Magistrate Judge
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