Treglia v. Tuolomne Superior Court

Filing 7

ORDER TO SHOW CAUSE directing petitioner to show cause, in writing, why petition should not be dismissed for petitioner's failure to amend the petition by naming a proper respondent; Case Management DDL set for 6/21/2007 for receipt of same; order signed by Judge Sandra M. Snyder on 5/17/07. (Rooney, M)

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(HC) Treglia v. Tuolomne Superior Court Doc. 7 Case 1:07-cv-00693-AWI-SMS Document 7 Filed 05/18/2007 Page 1 of 3 1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 TUOLOMNE SUPERIOR COURT, 13 Respondent. 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. 2254. 17 Petitioner filed the instant petition for writ of habeas corpus on May 7, 2007, in the 18 United States District Court for the Eastern District of California, Sacramento Division. By 19 order of May 9, 2007, the petition was transferred to this Court. 20 The Court has conducted a preliminary review of the Petition and finds it is without 21 jurisdiction to hear the case as Petitioner has named an improper respondent. 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); Stanley v. 25 California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having 26 custody of an incarcerated petitioner is the warden of the prison in which the petitioner is 27 incarcerated because the warden has "day-to-day control over" the petitioner. Brittingham v. 28 1 Dockets.Justia.com UNITED STATES DISTRICT COURT DANIEL TREGLIA, Petitioner, v. CV F 07-00693 AWI SMS HC ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR LACK OF JURISDICTION / Case 1:07-cv-00693-AWI-SMS Document 7 Filed 05/18/2007 Page 2 of 3 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 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. In this case, Petitioner names Tuolomne Superior Court, as Respondent. Although Petitioner was convicted in the Tuolomne County Superior Court, it is not the person having dayto-day control over Petitioner. 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, the Court HEREBY ORDERS: 1. Petitioner SHALL SHOW CAUSE why the Petition should not be dismissed by AMENDING the Petition to name a proper respondent within thirty (30) days of the date of service of this order. To comply with this directive petitioner need only submit a pleading titled "Amendment to Petition" in which he amends the petition to name a proper respondent. As noted above, that individual is the person having day to day custody over petitioner - usually the warden of the institution where he is confined. The Amendment should be clearly and boldly captioned as such and include the case number referenced above, and be an original signed under penalty of perjury. IT IS SO ORDERED. Dated: May 17, 2007 2 /s/ Sandra M. Snyder Case 1:07-cv-00693-AWI-SMS Document 7 Filed 05/18/2007 Page 3 of 3 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 icido3 UNITED STATES MAGISTRATE JUDGE 3

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