(HC) Potts v. Gastelo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN POTTS, Case No. 1:20-cv-01236-NONE-HBK 12 Petitioner, ORDER DENYING PETITIONER’S MOTION FOR AN EXTENSION OF AEDPA’s TIME 13 v. LIMITATIONS 14 J. GASTELO, (Doc. No. 3) 15 Respondent. 16 17 Petitioner Kevin Potts, a state prisoner proceeding pro se, has pending a petition for writ of 18 habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1). Petitioner filed a pleading titled “Motion for 19 Leave to Act After Expiration of Time F.R.C.P. (6).” (Doc. No. 3). To the extent discernable, 20 Petitioner appears to be requesting an extension of his filing deadline under the Antiterrorism and 21 Effective Death Penalty Act’s (“AEDPA”) limitations deadline. (See generally Id.). A petitioner 22 seeking habeas relief under § 2254 must comply with AEDPA’s limitations period. For most 23 habeas petitioners, the one-year limitations period applies and starts to run on “the date on which 24 the judgment became final by the conclusion of direct review or the expiration of the time for 25 seeking such review.” 42 U.S.C. § 2244(d)(1)(A). Statutory tolling applies to the “time during 26 which a properly filed application for State post-conviction or other collateral review with respect 27 to the pertinent judgment or claim is pending.” Id. § 2244(d)(2). Courts cannot override AEDPA’s 28 statute of limitations and statutory tolling rules, however a petitioner may seek equitable tolling. 1 Equitable tolling may be granted to a petitioner under limited circumstances. Holland v. 2 | Florida, 560 U.S. 631, 649 (2010). A petitioner can obtain equitable tolling if he shows: “(1) that 3 | he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in 4 | his way and prevented timely filing.” Williams v. Filson, 908 F.3d 546, 558 (9th Cir. 2018) (quoting 5 | Holland, 560 U.S. at 649). 6 Here, Petitioner generally complains that difficulties arising from the coronavirus outbreak 7 | prevented him from timely filing his petition. (Doc. No. 3). Petitioner does not provide enough 8 | facts in his motion for the Court to determine whether he is entitled to equitable tolling. See 9 | generally Holland, 560 U.S. at 649. Moreover, the Court has not yet determined that his petition 10 | is time-barred. To the extent Petitioner seeks an extension of AEDPA’s statute of limitations, his 11 | motion is premature. Should the Court determine that the petition appears time-barred the Court 12 | will afford Petitioner an opportunity to show cause why the petition should not be dismissed as 13 | untimely. Alternatively, if the respondent seeks dismissal of the petition as untimely, Petitioner 14 | may advance an equitable tolling argument in his reply brief. 15 Accordingly, Petitioner’s construed motion for extension of time to AEDPA’s time 16 | limitation (Doc. No. 3) is DENIED. 17 18 IT IS SO ORDERED. ° Dated: _ December 8, 2020 law ZA. foareh Zackte 20 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28