Findings, Conclusions and Recommendation

of the United States Magistrate Judge -Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KEVIN DEVON HAYNES, 1175542, )

Petitioner, )

)

v. ) No. 3:05-CV-1780-M

)

DOUGLAS DRETKE, Director, TDCJ-CID, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This cause of action was referred to the United States Magistrate Judge pursuant to the

provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the

United States District Court for the Northern District of Texas. The Findings, Conclusions and

Recommendation of the United States Magistrate Judge follow:

FINDINGS AND CONCLUSIONS

Rather than submitting a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,

Petitioner has filed a motion seeking an extension of time to file a federal habeas petition. 

Petitioner’s motion for extension of time does not present a case or controversy. See

Juidice v. Vail, 430 U.S. 327, 331 (1977) (presenting a justiciable case or controversy is a

jurisdictional requirement which the court has an obligation to examine sua sponte). 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].” Princeton Univ. v. Schmid, 455 U.S. 100, 102

(1982).

 

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The Court is unable to construe Petitioner’s motion as an application for writ of habeas

corpus because he does not present any grounds for relief. See Rules Governing Section 2254

Cases, Rule 2(a) & (c). 

Findings, Conclusions and Recommendation

of the United States Magistrate Judge -Page 2

Petitioner is seeking an advisory opinion. There is no adverse party before the Court. 

Nor is there a concrete dispute for this Court to decide. In essence, the motion for extension of

time asks the Court to determine in advance whether Petitioner’s federal writ will be time-barred

and whether equitable tolling may be available to extend the statute of limitations. The Court

lacks subject matter jurisdiction to grant such relief.1

RECOMMENDATION

For the foregoing reasons, the motion for extension of time should be dismissed for lack

of jurisdiction. 

Signed September 12, 2005.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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Findings, Conclusions and Recommendation

of the United States Magistrate Judge -Page 3

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions and

recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must serve and

file written objections within ten days after being served with a copy. A party filing objections

must specifically identify those findings, conclusions or recommendation to which objections are

being made. The District Court need not consider frivolous, conclusory or general objections. A

party's failure to file such written objections to these proposed findings, conclusions and

recommendation shall bar that party from a de novo determination by the District Court. See

Thomas v. Arn, 474 U.S. 140, 150, (1985). Additionally, any failure to file written objections to

the proposed findings, conclusions and recommendation within ten days after being served with

a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of

the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error.

Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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