Mitchell v. Malfi

Filing 4

ORDER signed by Judge William M. Wunderlich on 4/20/06 ORDERING Petitioner to file first amended petition in this case naming the correct Respondent. First amended petition due by 5/22/2006. (Carter-Ford, R)

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(HC) Mitchell v. Malfi Doc. 4 Case 1:06-cv-00387-AWI-WMW Document 4 Filed 04/20/2006 Page 1 of 2 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 Petitioner is a state prisoner proceeding pro se on a petition for writ of habeas corpus 21 pursuant to 28 U.S.C. 2254 in this court. 22 A petitioner seeking habeas corpus relief under 28 U.S.C. 2254 must name the state 23 officer having custody of him as the respondent to the petition. Rule 2 (a) of the Rules 24 Governing 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); 25 Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person 26 having custody of an incarcerated petitioner is the warden of the prison in which the 27 petitioner is incarcerated because the warden has "day-to-day control over" the petitioner. 28 ) ) Petitioner, ) ) v. ) ) ) UNNAMED, ) ) Respondent. ) ) ___________________________________ ) LEONARD JESSIE MITCHELL, CV F 06-0387 AWI WMW HC ORDER DIRECTING PETITIONER TO NAME CORRECT RESPONDENT Dockets.Justia.com Case 1:06-cv-00387-AWI-WMW Document 4 Filed 04/20/2006 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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, in this case, the Court will give petitioner the opportunity to cure his defect by amending the petition to name a proper respondent. 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). Accordingly, Petitioner is hereby GRANTED thirty (30) days from the date of service of this order to file a first amended petition in this case naming the correct Respondent. Petitioner's failure to do so will result in findings and recommendations that this action be dismissed. IT IS SO ORDERED. Dated: bl0dc4 April 20, 2006 /s/ William M. Wunderlich UNITED STATES MAGISTRATE JUDGE 2

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