Opinion
Civil No. 13cv0421-MMA (BGS)
02-25-2013
TEDDY SEUNG BAEK, Petitioner, v. DAVID LONG, Warden, et al., Respondents.
ORDER:
(1) DENYING MOTION FOR RELIEF
WITHOUT PREJUDICE; AND
(2) DISMISSING CASE
WITHOUT PREJUDICE
Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No.1), but has failed to pay the $5.00 filing fee and has failed to move to proceed in forma pauperis. In addition, Petitioner has filed a Motion for Relief in which he requests to be excused from the operation of the one-year statute of limitations applicable to federal habeas petitions based on equitable tolling. (ECF No. 2.)
FILING FEE REQUIREMENT
Because this Court cannot proceed until Petitioner has either paid the $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to proceed with this case, he must submit, no later than April 22, 2013, a copy of this Order with the $5.00 fee or with adequate proof of his inability to pay the fee. The Clerk of Court shall send a blank Southern District of California In Forma Pauperis Application to Petitioner along with a copy of this Order.
MOTION FOR RELIEF
Petitioner's request for relief from the operation of the statute of limitations based on equitable tolling is premature. The Court will consider his arguments and permit him to renew his Motion if and when the Court orders Respondent to file a response to the Petition. See e.g. Wentzell v. Nevan, 674 F.3d 1124 (9th Cir. 2012) (holding that although the District Court has authority to raise the statute of limitations sua sponte, "that authority should only be exercised after the court provides the petitioner with adequate notice and an opportunity to respond.") Accordingly, the Motion for Relief is DENIED without prejudice to Petitioner to renew his motion if and when the Court orders a response to the Petition.
IT IS SO ORDERED.
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Hon. Michael M. Anello
United States District Judge
CC: ALL PARTIES