Opinion
No. C 03-1772 SI (pr).
June 18, 2003.
ORDER OF DISMISSAL
Robert J. Espinoza-Matthews apparently wishes to challenge his state court criminal conviction. Rather than filing a petition for writ of habeas corpus, he filed an "Application For Extension Of Time," in which he explained that he has had little access to his prison's law library over the last year and wants additional time to file his federal habeas petition.
The court cannot provide the requested extension of time on the habeas statute of limitations deadline, see 28 U.S.C. § 2244(d). Under general principles derived from the "case or controversy" requirement of Article III, Section 2, of the United States Constitution, a federal court may not issue advisory opinions. See United States v. Cook, 795 F.2d 987, 994 (Fed. Cir. 1986) (district court erred in tolling statute of limitations as to future claims by persons not party to the case before the court). 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].'" Id. (quoting Princeton University v. Schmid, 455 U.S. 100, 102 (1982)). There is no concrete dispute for this court to decide: Espinoza-Matthews' request in essence asks the court to determine in advance whether his petition for writ of habeas corpus will be time-barred if it filed at some unspecified date in the future which may or may not be within the one-year period prescribed by 28 U.S.C. § 2244(d). This court could not grant the requested relief without offending the Constitution's case or controversy requirement. Although Espinoza-Matthews obtains no relief today, he is not forever barred from requesting relief. See Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997) (Section 2244(d) is subject to equitable tolling, although such tolling will not be available in most cases because extensions of time should only be granted if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time), cert. denied, 522 U.S. 1099, and cert. denied, 523 U.S. 1061 (1998), overruled in part on other grounds by Calderon v. United States District Court (Kelley), 163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060 (1999). If and when Espinoza-Matthews files a late habeas petition, he may make his tolling argument. At that point, and not before then, the court will consider whether the statute of limitations should be tolled. The request for an extension of time is DENIED. (Docket #1.)
Espinoza-Matthews also moved for appointment of counsel. The court will not consider appointing counsel to give legal advice to a habeas petitioner until the petitioner has filed a habeas petition so that the court can determine that the petition has been filed in the right court and meets the basic requirements for a habeas action, such as exhaustion of state court remedies and compliance with the statute of limitations. Only after a habeas petition has been filed will the court consider a request for the appointment of counsel. The motion for appointment of counsel is DENIED. (Docket #3.)
There is no case or controversy over which the court may exercise jurisdiction. The action is therefore DISMISSED. Thein forma pauperis application is DENIED. (Docket #4.) The clerk shall close the file.
IT IS SO ORDERED.