(HC) Gosztyla v. Paralles ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHANTELL GOSZTYLA, No. 2:21-cv-1815-EFB P 12 Petitioner, 13 v. ORDER 14 M. PARALLES, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding without counsel. She attempted to commence this 18 action using the court’s form petition for relief under 28 U.S.C. § 2254. ECF No. 1. However, 19 on that form, she writes, “I am still building my claims. Still gathering proof. As of this date 9- 20 27-21 I am only filing motion to request 90 day extension on AEDPA state of limitation.” Id. at 21 5. In a separate filing, petitioner requests a 90-day extension of time to file a petition for relief 22 under § 2254.1 ECF No. 2. As discussed below, petitioner has not properly commenced a civil 23 action. 24 To commence a civil action, a party is required to file a complaint or petition. Fed. R. 25 Civ. P. 3; Rule 3, Rules Governing § 2254 Cases; Woodford v. Garceau, 538 U.S. 202, 203 26 (2003). Until an action is properly commenced, the court may not rule on a motion for an 27 1 Petitioner’s filings do not serve as a “protective petition” for purposes of the Anti- 28 Terrorism and Effective Death Penalty Act of 1996’s one-year statute of limitation. 1 | extension of time. See Delarm vy. McDonald, No. Civ-S-11-0750-CKD P, 2011 WL 6012346, *2 2 | n.6 (E.D. Cal. Dec. 1, 2011) (“filing a request for an extension of time to file a § 2254 habeas 3 || petition before the petition has actually been filed is not proper as there is no § 2254 action until 4 || the petition has been filed... .”). If petitioner wishes to proceed with this case, she must file a 5 || petition. 6 In addition, petitioner must either file an application for leave to proceed in forma 7 || pauperis or pay the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). 8 Accordingly, it is hereby ORDERED that: 9 1. The Clerk of the Court shall send to petitioner the court’s forms for application for writ 10 || of habeas corpus and application for leave to proceed in forma pauperis. 11 2. Within 30 days from the date of service of this order, petitioner shall either pay the $5 12 | filing fee or submit a complete application for leave to proceed in forma pauperis. 13 3. Within 30 days from the date of service of this order, petitioner shall file a petition for 14 | writ of habeas corpus. 15 4. Failure to comply with this order may result in this case being closed. 16 | DATED: November 4, 2021. 18 EDMUND F. BRENNAN 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28