United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE
the Court is the movant's Motion for Extension of
Time, received on September 10, 2019 (doc. 1). Based on
the relevant findings and applicable law, the motion should
be DISMISSED for lack of subject matter
April 26, 2018, Raziel Martinez (Movant) pled guilty to
possession with intent to distribute heroin in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(C). On September
24, 2018, he was sentenced to 151 months of imprisonment.
(See 3:17-CR-582-N-1, docs. 39, 41.)
contends that he is in the process of preparing a claim for
ineffective assistance of counsel, but his efforts have been
delayed due to various lock-downs at his prison facility and
because he is also waiting on documents from the Clerk of
Court. (See doc. 1 at 1-2.) He claims that his
one-year deadline to file a motion to vacate his sentence
under 28 U.S.C. § 2255 expires in a few weeks, and he
seeks a 45-day extension of his deadline. (See Id.
at 2.) His motion does not present any specific grounds for
relief under § 2255. (See id.)
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 § 2255 motions filed after its
effective date. United States v. Flores, 135 F.3d
1000, 1006 (5th Cir. 1998). 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. See 28 U.S.C. § 2255(f).
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 movant 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. See Id. at 2562 (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), abrogated on other grounds by
Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir.
2255 does not authorize federal courts to prospectively
extend, stop or toll the one-year statute of limitations.
See 28 U.S.C. § 2255(f). Federal courts lack
jurisdiction to consider the timeliness of a § 2255
motion until it is actually filed. See United States v.
McFarland, 125 Fed.Appx. 573, 574 (5th Cir. 2005) (per
curiam) (“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, at *1
(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 Movant's motion will require an advance
determination of whether his motion will be time-barred and
whether equitable tolling is applicable. As noted, §
2255 does not authorize a prospective extension of the
statute of limitations. There is 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 within the fourteen-day period for
objecting to this recommendation, or some other deadline set
by the Court, Movant submits a § 2255
Clerk of the Court shall mail Movant a standard form for
cases filed under 28 U.S.C. § 2255, with the case number
included on the form.
FOR SERVICE AND NOTICE OF ...