Case 2:22-cv-00938-JWH-KS Document 3 Filed 03/04/22 Page 1 of 5 Page ID #:5

1 J S -6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 KERRY ODELL DAVIS, ) NO. CV 22-00938 JWH (KS) ) 11 Petitioner, ) ORDER AND JUDGMENT DISMISSING ) HABEAS PETITION WITHOUT 12 v. ) PREJUDICE ) 13 THE PEOPLE OF THE STATE OF )

CALIFORNIA, )

14 ) Respondents. ) 15 _______________________________ ) 16

17

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1 INTRODUCTION 2 On February 9, 2022, Petitioner, a California state prisoner proceeding pro se, 3 filed a single-page document in this Court, which was docketed as a Petition for Writ 4 Of Habeas Corpus By A Person in State Custody pursuant to 28 U.S.C. § 2254. (Dkt. 5 No. 1.) The document appears to be addressed to the California Court of Appeal, 6 Second Appellate District, Division Eight, concerning case no. BA472810 in the trial 7 court and case no. B306557 in the state court of appeal. (Id.) In the document, 8 Petitioner moves “for a 90 day extention [sic] because of condition[s] due to the 9 Covid-19 pandemic lockdown situation here at Centinela State Prison Facility B-3.” 10 (Id.) Petitioner does not specify what he seeks an extension of time to file, however, 11 he states that he has “not been able to get the require[d] time to do the petition for a 12 writ of certiorari with the United States Supreme Court” and that extra time “would 13 [allow] me to show great cause in this case that’s been placed on me.” (Id.) 14 A review of Petitioner’s publicly available state court records reveals that, in 15 Los Angeles Superior Court case no. BA472810, he was convicted of two counts of 16 robbery and sentenced to an indeterminate term of 58 years to life under California’s 17 three strikes law. See People v. Davis, No. B306557, 2021 WL 3284752, at *1-2 18 (Cal. Ct. App. Aug. 2, 2021). The California Court of Appeal affirmed the judgment 19 (id. at *5) and the California Supreme Court denied review of the state appellate 20 court’s decision on October 20, 2021. See People v. Davis, No. S270815, available at 21 http://appellatecases.courtinfo.ca.gov. A search of the United States Supreme Court 22 docket does not reveal any results indicating that Petitioner has a matter pending 23 before the high court. 24 DISCUSSION 25 Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts 26 (“Habeas Rules”) provides that the Court “must promptly examine” a federal habeas 27 2 Case 2:22-cv-00938-JWH-KS Document 3 Filed 03/04/22 Page 3 of 5 Page ID #:7

1 petition and “[i]f it plainly appears from the petition and any attached exhibits that the 2 petitioner is not entitled to relief in the district court, the judge must dismiss the 3 petition and direct the clerk to notify the petitioner.” Habeas Rule 4; see also 4 C.D. Cal. L.R. 72-3.2 (“The Magistrate Judge promptly shall examine a petition for 5 writ of habeas corpus, and if it plainly appears from the face of the petition and any 6 exhibits annexed to it that the petitioner is not entitled to relief, the Magistrate Judge 7 may prepare a proposed order for summary dismissal and submit it and a proposed 8 judgment to the District Judge.”). The Advisory Committee Note to Habeas Rule 4 9 provides that the rule “is designed to afford the judge flexibility in a case where either 10 dismissal or an order to answer may be inappropriate.” Lonchar v. Thomas, 517 U.S. 11 314, 325 (1996). The Advisory Committee Note also provides that “it is the duty of 12 the court to screen out frivolous applications and eliminate the burden that would be 13 placed on the respondent by ordering an unnecessary answer,” and that a habeas 14 petition is expected to state facts “that point to a real possibility of constitutional 15 error.” See Krenwinkel v. Hill, No. CV 19-10066-VBF (SP), 2020 WL 7061033, at *1 16 (C.D. Cal. Oct. 19, 2020). 17 Additionally, 28 U.S.C. § 2242 and Habeas Rule 2 describe the requirements 18 relating to the form, contents, scope, and sufficiency of a federal habeas petition. 19 Specifically, a habeas petition must: (1) specify all the grounds for relief available to 20 the petitioner; (2) state the facts supporting each ground; (3) state the relief requested; 21 (4) be printed, typewritten, or legibly handwritten; and (5) be signed under penalty of 22 perjury. Habeas Rule 2. The Advisory Committee Note to Habeas Rule 2 makes clear 23 that “an applicant challenging a state judgment, pursuant to which he is presently in 24 custody, must make his application in the form of a petition for a writ of habeas 25 corpus.” Habeas Rule 2, Advisory Committee Note (1976 Adoption). 26 27 3 Case 2:22-cv-00938-JWH-KS Document 3 Filed 03/04/22 Page 4 of 5 Page ID #:8

1 The Court’s review of the document filed by Petitioner reveals that it is facially 2 deficient as a federal habeas petition and must be dismissed. The document appears to 3 be an erroneous attempt to request an extension of time from the California state courts 4 to file a petition for certiorari in the United States Supreme Court. But, regardless of 5 what Petitioner intends to file or where, Petitioner has failed to articulate any legal 6 claims for relief, state any facts in support, or request any federal habeas relief. 7 Habeas Rule 2. Accordingly, Petitioner has not filed a federal habeas petition with any 8 cognizable issues under 28 U.S.C. § 2254, and this action should be dismissed. 9 Habeas Rules 2, 4; L.R. 72-3.2. 10 Further, even liberally construing Petitioner’s filing as a request for an extension 11 of time to file a federal habeas petition in this Court, that request is insufficient to 12 initiate a federal habeas action because it does not present a justiciable case or 13 controversy. See Valley Forge Christian Coll. v. Americans United for Separation of 14 Church and State, Inc., 454 U.S. 464, 471 (1982) (“Article III of the Constitution 15 limits the ‘judicial power’ of the United States to the resolution of ‘cases’ and 16 ‘controversies.’); Morales v. Warden, No. CV 13-1748 CJC (AN), 2013 WL 1192343, 17 at *2 (C.D. Cal. Mar. 22, 2013) (letter requesting an extension of time to file § 2254 18 petition did “not constitute a valid habeas petition or present a justiciable case or 19 controversy because, among other things, it does not raise any cognizable federal 20 claims.”); Chairez v. Adams, 2007 WL 1703750, *1 (N.D. Cal. June 11, 2007) (motion 21 seeking to extend time to file habeas petition does not constitute a valid habeas petition 22 and violates case or controversy requirement); cf. United States v. Leon, 203 F.3d 162, 23 164 (2d Cir. 2000) (federal courts lack jurisdiction to consider the timeliness of a 24 § 2255 petition until a petition is actually filed). 25 Finally, Petitioner fails to set forth any facts concerning his judgment of 26 conviction or sentence, let alone facts that point to a real possibility of constitutional 27 4 Case 2:22-cv-00938-JWH-KS Document 3 Filed 03/04/22 Page5of5 Page ID #:9

1 |}error. Habeas Rule 4, Advisory Committee Note (1976 Adoption); Mayle v. Felix, 545 2 ||U.S. 644, 655 (2005). 3 ORDER AND JUDGMENT 4 For the reasons set forth above, it is hereby ORDERED, ADJUDGED, and 5 || DECREED that this action is DISMISSED without prejudice. 6 IT IS SO ORDERED. 8 || DATED: March 4, 2022 { G SO 9 10 UNITED STATES DISTRICT JUDGE 11 || Presented by: I TS on Rens ° KAREN L. STEVENSON 14 || UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27