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Drewry v. State

United States District Court, District of Maine

September 18, 2014

BRANDON B. DREWRY, Petitioner,
v.
STATE OF MAINE, Respondent

Petitioner BRANDON B DREWRY represented by BRANDON B DREWRY MAINE STATE PRISON PRO SE

Respondent STATE OF MAINE

RECOMMENDED DECISION

John C. Nivison U.S. Magistrate Judge

Petitioner Brandon B. Drewry has filed a motion seeking an enlargement of time within which to file a petition pursuant to 28 U.S.C. § 2254. (Motion, ECF No. 1.) As explained below, the recommendation is that the motion be denied because the Court lacks jurisdiction to grant the motion.

While the First Circuit apparently has not addressed the issue of whether the Court has jurisdiction to grant a motion to enlarge the time to file a habeas petition when no petition has been filed, the Second Circuit has addressed the issue in the context of a motion to enlarge the time to file a petition under 28 U.S.C. § 2255. See Green v. United States, 260 F.3d 78, 82-83 (2d Cir. 2001). In Green, the Court determined that “a district court may grant an extension of time to file a motion pursuant to section 2255 only if (1) the moving party requests the extension upon or after filing an actual section 2255 motion, and (2) ‘rare and exceptional’ circumstances warrant equitably tolling the limitations period.” The Court reasoned, “[p]rior to an actual filing [of a section 2255 motion], ‘there is no case or controversy to be heard, and any opinion we were to render on the timeliness issue would be merely advisory.’” Id. at 82 (quoting United States v. Leon, 203 F.3d 162, 164 (2d Cir. 2000)). Other courts have reached a similar conclusion. See Swichkow v. United States, 565 F. App’x 840, 844 (11th Cir. 2014); United States v. Gonzalez, No. 05-137-06, 2010 WL 2365666, at *1, 2010 U.S. Dist. Lexis 65952, at 1-3 (D. R.I. June 8, 2010); United States v. Miller, No. 06-CR-20080, 2008 WL 4541418, at *1-2, 2008 U.S. Dist. Lexis 80552, at *1-4 (C.D.Ill. Oct. 9, 2008).

The reasoning of the Second Circuit is sound, and equally applicable to a request for relief under section 2254. That is, absent the filing of a habeas petition, or the inclusion of grounds for substantive habeas relief in the motion to enlarge the time to file the petition, the Court is without jurisdiction to grant the moving party an enlargement of time to file a section 2254 petition. See Green, 260 F.3d at 83. Here, Petitioner asserts that poor medical care in prison and limited access to the prison library and computers have prevented him from filing his habeas petition.[1] However, Petitioner does not allege any substantive ground for habeas relief pursuant to 28 U.S.C. § 2254 or otherwise meet the requirements for a section 2254 petition.[2] Because no petition has been filed, no case or controversy is pending before the Court. Accordingly, the Court lacks jurisdiction to consider the motion.[3]

CONCLUSION

Based on the foregoing analysis, the recommendation is that the Court deny Petitioner’s motion for enlargement of time to file a habeas petition (ECF No. 1). The recommendation is also that the Court dismiss as moot Petitioner’s motion for copies, typewriter, laptop, ipad and printer (ECF No. 2).


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