Summary
dismissing motion requesting an extension of time to file § 2254 habeas petition as premature
Summary of this case from Broadnax v. Sec'yOpinion
Case No. 2:13-cv-324-FtM-29SPC
05-07-2013
JULIO PEREZ, Petitioner, v. UNNAMED RESPONDENT, Respondent.
ORDER OF DISMISSAL
This matter comes before the Court upon initial review of the file. Petitioner Julio Perez, proceeding pro se, initiated this action by filing a motion for an extension of time. See docket. Petitioner seeks an extension of time to file a habeas corpus petition pursuant to 28 U.S.C. § 2254.
The Federal Rules of Civil Procedure apply to habeas corpus proceedings to the extent the Rules do not conflict with the Rules Governing § 2254 Cases. See Rule 12, Rules Governing § 2254 Cases; Fed. R. Civ. P. 81(A)(4). Under Fed. R. Civ. P. 3, a civil action is initiated by the filing of a Complaint, not a motion. Similarly, a habeas corpus action is initiated by the filing of a Petition, not a motion. Fed. R. Civ. P. 3; Isaacs v. Head, 300 F.3d 1232, 1245 (11th Cir. 2002)(a habeas case is not "pending" for purposes of AEDPA until a petition is filed in the court). Because Petitioner does not have a habeas action pending, his motion for an extension of time is due to be denied as premature. Bruno v. Sec'y Fla. Dep't of Corr., 2011 WL 4102810, *1 (N.D. Fla. Aug. 11, 2011)(noting motion for an extension of time with no petition filed was denied as premature). If Petitioner wishes to initiate a federal habeas corpus action, he must do so by filing a Petition for Writ of Habeas Corpus on the Court's standardized form, after he exhausts his claims for relief before the State courts. See generally Rule 2, Rules Governing § 2254 Cases.
ACCORDINGLY, it is hereby
ORDERED:
1. Petitioner's motion for an extension of time (Doc. #1) is DENIED as premature and the case is dismissed without prejudice.
2. The Clerk of Court shall terminate any pending motions, enter judgment accordingly, and close this case.
3. The Clerk of Court shall mail Petitioner a copy of the standardized form for § 2254 cases.
DONE AND ORDERED in Fort Myers, Florida, on this 7th day of May, 2013.
____________________
JOHN E. STEELE
United States District Judge
SA: alj
Copies: All Parties of Record