(HC) Gerolaga v. Kramer, No. 2:2006cv02396 - Document 3 (E.D. Cal. 2006)

Court Description: ORDER signed by Judge Dale A. Drozd on 11/13/06 ORDERING petitioner's 10/31/06 application for an enlargement of time is DENIED. Clerk is directed to send petitioner a habeas petition form with an application to proceed in forma pauperis in a habeas case. FINDINGS and RECOMMENDATIONS recommending that this action be dismissed without prejudice. Referred to Judge William B. Shubb. Objections to F&R due within 20 days. (Carlos, K)

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(HC) Gerolaga v. Kramer Doc. 3 Case 2:06-cv-02396-WBS-DAD Document 3 Filed 11/13/2006 Page 1 of 2 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 TONY GEROLAGA, 11 12 13 14 15 Petitioner, No. CIV S-06-02396 WBS DAD P vs. WARDEN KRAMER, ORDER AND Respondent. FINDINGS AND RECOMMENDATIONS / 16 Petitioner, a state prisoner confined in Folsom State Prison, has submitted an 17 application for enlargement of time to file a federal habeas petition. Petitioner states that his 18 “due date is Nov. 2, 2006, as per this Court’s Order of Calif. Supreme Court to submit a Petition 19 for Writ of Habeas Corpus/United States District Court of Calif.” Petitioner’s application was 20 not accompanied by a habeas petition, and nothing in the application shows that petitioner has a 21 November 2, 2006 deadline or that venue lies in this court. 22 A federal habeas action is commenced by filing an application for habeas corpus 23 relief, and no habeas action is considered “pending” until such an application is filed. Woodford 24 v. Garceau, 538 U.S. 202, 210 (2003). The application for habeas corpus relief must seek 25 adjudication on the merits of the petitioner’s claims. Id. at 207. The filing of some other 26 document, such as a motion for appointment of counsel, an application to proceed in forma 1 Dockets.Justia.com Case 2:06-cv-02396-WBS-DAD Document 3 Filed 11/13/2006 Page 2 of 2 1 pauperis, or a request for extension of time, will not commence a habeas action and will not toll 2 the statute of limitations because such documents are not equivalent to an application for relief 3 from the petitioner’s state judgment of conviction. See Isley v. Arizona Dep’t of Corrections, 4 383 F.3d 1054, 1055 (9th Cir. 2004). 5 The petitioner in this case has not properly commenced a federal habeas action. 6 This case should be dismissed without prejudice to a properly commenced habeas action. When 7 petitioner submits a habeas petition, it must not include the case number assigned to this case. 8 Accordingly, IT IS ORDERED that: 9 1. Petitioner’s October 31, 2006 application for an enlargement of time is denied 10 11 2. The Clerk of the Court is directed to send petitioner a habeas petition form with an application to proceed in forma pauperis in a habeas case; and 12 13 IT IS RECOMMENDED that this action be dismissed without prejudice to the proper commencement of a habeas action. 14 These findings and recommendations will be submitted to the United States 15 District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 16 ten days after being served with these findings and recommendations, petitioner may file written 17 objections with the court. A document containing any objections should be titled “Objections to 18 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 19 specified time may, under certain circumstances, waive the right to appeal the District Court’s 20 order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 DATED: November 13, 2006. 22 23 24 25 DAD:13:bb gero2396.56nop 26 2

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