Lino Isaias Davalos Perez v. Warden ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 || LINO ISAIAS DAVALOS PEREZ, Case No. CV 20-4778 SVW (PVC) 12 Petitioner, ORDER DENYING PETITIONER’S 13 V. “MOTION OF ABEYANCE” AND SUMMARILY DISMISSING ACTION 14 | WARDEN, WITHOUT PREJUDICE 15 Respondent. 16 PO 17 On May 28, 2020, Petitioner Lino Isaias Davalos Perez (“Petitioner’’) filed a 18 || “Motion of Abeyance” (the “Motion’”). Petitioner asks the Court to hold “this case” in 19 || abeyance so that he may “exhaust all administrative remedies in State Courts of Appeal.” 20 || (Motion at 1). The Court presumes that Petitioner seeks this extension to avoid the one- 21 || year limitations period set forth in 28 U.S.C. § 2244(d)(1). Petitioner has not, however, 22 || actually filed a habeas petition. 23 24 According to the Motion, Petitioner seeks an extension of time to initiate a federal 25 |) habeas action because his appellate counsel did not raise unidentified “viable issues” on 26 || direct appeal. (/d. at 1). Petitioner states that these “viable issues” could “grant [him] 27 || relief in the state appeals system.” (/d.). 28 1 Petitioner’s Motion does not identify any grounds for habeas relief. Nor does 2 || Petitioner indicate when and where he was convicted, or the outcome of any state 3 || appellate or post-conviction relief he has sought. Regardless, even without this required 4 || information, the Court concludes that the requested relief cannot be granted. 5 6 The exercise of federal jurisdiction under the Constitution depends on the existence 7 || of acase or controversy. United States Nat’l Bank vy. Independent Ins. Agents of America, 8 || Inc., 508 U.S. 439, 446 (1993). Because Petitioner has not actually filed a federal habeas 9 || petition challenging his conviction or sentence, there is no concrete dispute presently 10 || before the Court for the Court to decide. See Calderon v. Ashmus, 523 U.S. 740, 746 11 |} (1998) (actual “controversy” in 28 U.S.C. § 2254 action is whether petitioner is entitled to 12 || have his state-imposed conviction or sentence set aside). 13 14 Petitioner essentially seeks an advisory opinion regarding the potential 15 || untimeliness of any federal habeas petition he might file in the future. However, under 16 || the “case-or-controversy” requirement of the United States Constitution, federal courts 17 || may not issue advisory opinions. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 18 || (1992). Thus, the Motion seeks relief which the Court cannot grant without violating the 19 || “case-or-controversy” requirement of the Constitution. See United States v. Leon, 203 20 || F.3d 162, 164 (2nd Cir. 2000) (“[B]ecause [petitioner] has not yet filed an actual § 2255 21 || petition, there is no case or controversy to be heard, and any opinion we were to render on 22 || the timeliness issue would be merely advisory. Accordingly, we lack jurisdiction to 23 || consider the issue... .”); Ramirez v. United States, 461 F. Supp. 2d 439, 440 (E.D. Va. 24 || 2006) (“[A] motion for extension of time [to file a habeas action] is not, by itself, a “case 25 || or controversy’ within the meaning of Article HI of the United States Constitution.”); 26 || Geivett v. Unknown, 2019 WL 4081057, at *1 (C.D. Cal. Aug. 28, 2019) (court lacked 27 || jurisdiction to grant state prisoner’s request for a stay submitted without an actual petition 28 || where the letter requesting the stay could not be construed as a § 2254 petition because it 1 || did not comply with filing requirements applying to habeas petitions); Harrison v. 2 || Warden, 2016 WL 6436826, at *1 (C.D. Cal. Oct. 31, 2016) (“In a state prisoner’s federal 3 || habeas action, the underlying ‘controversy’ is whether the petitioner is ‘in custody in 4 }| violation of the Constitution or laws or treaties of the United States.” Thus, a federal court 5 || lacks jurisdiction to consider petition-related requests “unless and until such a [federal 6 || habeas] petition is actually filed.’”) (internal citations omitted; brackets in original). 7 8 While district courts are empowered to stay and abey federal habeas actions under 9 || certain conditions, see, e.g., King v. Ryan, 564 F.3d 1133, 1138-41 (9th Cir. 2009), the 10 || Court cannot determine at this stage of the proceedings whether Petitioner would be 11 |] entitled to a stay. However, should Petitioner subsequently file an actual habeas petition, 12 || he may seek a stay of the petition at that time. The Court would then be presented with an 13 || actual case or controversy and would be able to rule on Petitioner’s request. 14 15 IT IS ORDERED that Petitioner’s Motion is DENIED and that Judgment be 16 || entered dismissing this action without prejudice. IT IS FURTHER ORDERED that the 17 || Clerk serve copies of this Order and the Judgment on Petitioner. 18 19 LET JUDGMENT BE ENTERED ACCORDINGLY. 20 21 || DATED: December 3, 2020 fF □□□ Ler 22 STEPHEN V.WIT.SON 33 UNITED STATES DISTRICT JUDGE 24 || PRESENTED BY: 25 fal li 27 | PEDRO V-CASTILLO 28 UNITED STATES MAGISTRATE JUDGE