Primas v. California Director of Corrections

Filing 5

ORDER GRANTING Petitioner Leave to File a Motion to Amend the Petition and Name a Proper Respondent. Filing due by 3/20/2006 for Petitioner to comply with this Order. Signed by Judge Lawrence J. O'Neill on 2/15/06. (Hellings, J)

(HC) Primas v. California Director of Corrections

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UNITED STATES DISTRICT COURT
EAS TER N DISTRICT OF CALIFORNIA

7 8 9 10 11 12 Respondents. 13 14 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 15 pursuant to 28 U.S.C. § 2254. 16 On January 25, 2006, the instant petition was received in this Court following a transfer from 17 the Northern District of California. 18 DISCUSSION 19 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review 20 of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears 21 from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 22 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A petition for habeas 23 corpus should not be dismissed without leave to amend unless it appears that no tenable claim for 24 25 In this case, Petitioner names the California Department of Corrections as Respondent. 26 Petitioner is incarcerated at Sierra Conservation Center located in Jamestown, California. 27 A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer 28
U . S . District C o u r t E. D . C alifor nia cd

BYRON DANIEL PRIMAS, Petitioner, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, et al.,

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1:06-CV-0084 AWI LJO HC ORDER GRANTING PETITIONER LEAVE TO FILE A MOTION TO AMEND THE PETITION AND NAME A PROPER RESPONDENT

relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

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having custody of him as the respondent to the petition. Rule 2 (a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of an incarcerated petitioner is the warden of the prison in which the petitioner is incarcerated because the warden has "day-to-day control over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). However, the chief officer in charge of state penal institutions is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or parole, the proper respondent is his probation or parole officer and the official in charge of the parole or probation agency or state correctional agency. Id. Petitioner's failure to name a proper respondent requires dismissal of his habeas petition for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 1326 (9th Cir. 1970); see also, Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd Cir. 1976). However, the Court will give Petitioner the opportunity to cure this defect by amending the petition to name a proper respondent, such as the warden of his facility. See West v. Louisiana, 478 F.2d 1026, 1029 (5th Cir.1973), vacated in part on other grounds, 510 F.2d 363 (5th Cir.1975) (en banc) (allowing petitioner to amend petition to name proper respondent); Ashley v. State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). In the interests of judicial economy, Petitioner need not file an amended petition. Instead, Petitioner may file a motion entitled "Motion to Amend the Petition to Name a Proper Respondent" wherein Petitioner may name the proper respondent in this action. ORDER Accordingly, Petitioner is GRANTED thirty (30) days from the date of service of this order in which to file a motion to amend the instant petition and name a proper respondent. Failure to amend the petition and state a proper respondent will result in a recommendation that the petition be dismissed for lack of jurisdiction. IT IS SO ORDERED. Dated: b9ed48 February 15, 2006 /s/ Lawrence J. O'Neill UNITED STATES MAGISTRATE JUDGE

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