The opinion of the court was delivered by: William W. Caldwell United States District Judge
Defendant, Francisco Llano, has written a letter, which we will construe as a pro se motion for extension of time to file a 28 U.S.C. § 2255 motion. We will dismiss the motion because we have no jurisdiction to consider it.
In May 2004, Defendant pled guilty to an information charging him, in part, with distribution and possession with intent to distribute cocaine hydrochloride and crack cocaine in violation of 21 U.S.C. § 841(a)(1). In September 2004, he was sentenced to 168 months' imprisonment. On June 8, 2005, the Third Circuit denied his direct appeal.
On June 14, 2006, his letter requesting an extension of time to file a 28 U.S.C. § 2255 motion was filed. The letter, which we treat as a motion, presents no grounds that Defendant might raise in a 2255 motion and focuses solely on reasons why an extension should be granted. Defendant alleges that he has been confined at the Philadelphia Federal Detention Center since July 2005 and has been requesting his personal property, including his legal material, for about eight months, and it was only about two weeks ago he did receive his personal property, but none of his legal material. Additionally, Defendant represents he asked his trial lawyer for help in obtaining his legal material, but he has not received a reply. Defendant calculates his deadline for filing his 2255 motion as September 7, 2006, and requests an extension, being uncertain as to whether he will be able to meet the filing deadline.
Most courts confronting a motion to extend the time for filing a 2255 motion have decided that a district court has no jurisdiction to consider such an extension motion. See United States v. Leon, 203 F.3d 162, 164 (2d Cir. 2000)(per curiam) (collecting cases). The reasoning is often a bit conclusory but is exemplified by Leon where the Second Circuit, noting that an essential part of a federal court's jurisdiction under Article III of the Constitution is the existence of a case or controversy, stated that: because Leon has not yet filed an actual § 2255 petition, there is no case or controversy to be heard, and any opinion we were to render on the timeliness issue would be merely advisory. Accordingly, we lack jurisdiction to consider the issue on appeal.
Id. See also United States v. Callahan, 70 Fed. Appx. 179, 180 (5th Cir. 2003)(nonprecedential)(citing Leon); United States v. Chambliss, 1998 WL 246408 (6th Cir.)(nonprecedential)(no case or controversy is present when only an extension motion is before the court); In re Wattanasiri, 982 F. Supp. 955, 958 (S.D.N.Y. 1997)(cited in Leon)(when only a motion to extend the 2255 time limit is before the court, "there is no action or proceeding pending. Movant's criminal case has ended. He has not filed a motion pursuant to 28 U.S.C. § 2255. There is no civil action."); United States v. Paschal, 2003 WL 21000361 (N.D. Ill.)(citing Leon); United States v. Polanco, 1999 WL 328352 (S.D.N.Y.)(citing In re Wattanasiri); United States v. Marano, 2002 WL 449571 (N.D. Tex.); United States v. Clarke, 1998 WL 91069 (D. Conn.)(citing In re Wattanasiri); United States v. Agnes, 1997 WL 763025 at *1 (E.D. Pa.)("determination of the timeliness of a motion [the defendant] may or may not eventually file would merely constitute an advisory opinion")(citing In re Wattanasiri). Similarly, district courts considering motions to extend the one-year period for a petition under 28 U.S.C. § 2254 challenging a state-court conviction have concluded there is no jurisdiction to do so. See Espinoza-Matthews v. California, 2003 WL 21518116 (N.D. Cal.); Ybarra v. Cockrell, 2002 WL 1784422 (N.D. Tex.).
Although section 2255 proceedings have been characterized as just "a further step in the movant's criminal case and not a separate civil action," United States v. Fiorelli, 337 F.3d 282, 285-86 (3d Cir. 2003) (quoting Section 2255 Rule 1 advisory committee notes), we agree with the analysis set forth in these cases and will therefore dismiss the motion for extension of time for lack of jurisdiction.
In doing so, we also rely on United States v. Verners, 15 Fed. Appx. 657 (10th Cir. 2001) (nonprecedential), which concluded there is no jurisdiction to entertain an extension motion because of the ripeness doctrine, an aspect of the case-or-controversy requirement. In Verners, the Tenth Circuit stated:
Article III's ripeness requirement "forestall[s] judicial determinations of disputes until the controversy is presented in clean-cut and concrete form." Id. This court considers two issues to determine whether a claim is ripe for adjudication:
(1) the fitness of the issue for judicial resolution and (2) the hardship to the parties of withholding judicial consideration. See id.
We conclude that the question of equitable tolling is ripe for adjudication only when a § 2255 motion has actually been filed and the statute of limitations has been raised by the respondent or the court sua sponte. It is only at this point that the record will be sufficient to determine whether the requisite "extraordinary circumstances" are present to the magnitude necessary to merit equitable tolling. Furthermore, this court can discern no hardship to Verners in withholding judicial consideration of the question of equitable tolling until a § 2255 motion is actually filed and ...