United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.
the Court is the petitioner's Motion for Extension of
Time In Pursant [sic], 2254(A) Hebaus [sic] Corpus Writ,
received July 25, 2019. (See doc. 3.) Based on the relevant
findings and applicable law, this action should be
DISMISSED for lack of subject matter
jury convicted [Petitioner] of murder. During the punishment
phase, [Petitioner] pleaded true to having two prior felony
convictions. After finding the enhancement paragraphs true,
the jury assessed punishment at life imprisonment.”
Adger v. State, No. 05-16-00099-CR, 2016 WL 7163970,
at *1 (Tex. App. - Dallas November 30, 2016, pet. ref'd.)
On November 30, 2016, the Fifth District Court of Appeals
affirmed the judgment. (See id.) On May 17, 2017,
the Texas Court of Criminal Appeals (TCCA) refused
Petitioner's petition for discretionary review (PDR).
Petitioner filed a writ of certiorari on August 3, 2017,
which the Supreme Court denied on October 18, 2017. (See
id.) He filed an application for state writ of habeas
corpus on January 18, 2019, which the TCCA denied on May 8,
now seeks a thirty-day extension of the one-year statute of
limitations under 28 U.S.C. § 2244(d)(1) to file his
federal habeas petition because his unit is on lock down
status. (See doc. 3.)
enacted the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), Pub. L. 104-132, 110 Stat. 1217, on April 24,
1996. It applies to all federal petitions for habeas corpus
filed after its effective date. Lindh v. Murphy, 521
U.S. 320, 326 (1997). One of the ways that Title I of AEDPA
substantially changed the way federal courts handle habeas
corpus actions was by imposing of a one-year statute of
limitations for filing a federal petition. See 28
U.S.C. § 2244(d)(1). AEDPA's one-year statutory
deadline is not a jurisdictional bar and can, in appropriate
exceptional circumstances, be equitably tolled. Holland
v. Florida, 130 S.Ct. 2549 (2010) (deciding that the
timeliness provision in the AEDPA is subject to equitable
tolling). A habeas petitioner is entitled to equitable
tolling only if he shows that: 1) he has been pursuing his
rights diligently, and 2) some extraordinary circumstance
prevented a timely filing. Holland, slip op. at 12,
citing Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005). “Equitable tolling applies principally where
[one party] is actively misled by the [other party] about the
cause of action or is prevented in some extraordinary way
from asserting his rights.” See Coleman v.
Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting
Rashidi v. American President Lines, 96 F.3d 124,
128 (5th Cir. 1996)).
2254 does not authorize federal courts to prospectively
extend, stop or toll the one-year statute of limitations.
See § 2244(d)(1). Federal courts lack
jurisdiction to consider the timeliness of a habeas petition
until it is actually filed. See United States v.
McFarland, 125 Fed. App'x 573, *1 (5th Cir. Apr. 6,
2005) (“Before the [§ 2255] petition itself is
actually filed, ‘there is no case or controversy to be
heard, and any opinion we were to render on the timeliness
would be merely advisory.'”); see also Gray v.
Quarterman, No. 3:08-CV-2068-D, 2008 WL 5385010 (N.D.
Tex. Dec. 23, 2008) (federal courts do not “sit to
decide hypothetical issues or to give advisory opinions about
issues as to which there are not adverse parties before
[them]”), quoting Princeton University v. Schmid,
455 U.S. 100, 102 (1982) (other citations omitted). A
party seeking to invoke federal subject matter jurisdiction
must present a justiciable case or controversy.
Gray, 2008 WL 5385010 at *1, citing Juidice v.
Vail, 430 U.S. 327, 331 (1977) (other citations
ruling on the petitioner's motion will require an advance
determination of whether his petition will be time-barred and
whether equitable tolling is applicable. As noted, §
2254 does not authorize a prospective extension of the
statute of limitations. There is no adverse party before the
Court at this time, and no concrete dispute to be decided.
Accordingly, the Court lacks subject matter jurisdiction to
grant any relief.
action should be DISMISSED for lack of
jurisdiction, unless the petitioner either files a motion to
proceed in forma pauperis or pays the $5 filing fee
and submits a habeas petition on the appropriate
form within the fourteen-day period for objecting to this
recommendation, or some other deadline set by the Court.
FOR SERVICE AND NOTICE OF RIGHT TO
of these findings, conclusions and recommendation shall be
served on all parties in the manner provided by law. Any
party who objects to any part of these findings, conclusions
and recommendation must file specific written objections
within 14 days after being served with a copy. See
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72 b). In order to
be specific, an objection must identify the specific finding
or recommendation to which objection is made, state the basis
for the objection, and specify the place in the magistrate
judge's findings, conclusions and recommendation where
the disputed determination is found. An objection that merely
incorporates by reference or refers to the briefing before
the magistrate judge is not specific. Failure to file
specific written objections will bar the aggrieved party from
appealing the factual ...