Damon Marcell Rogers v. Hedgpeta

Filing 10

ORDER signed by Magistrate Judge Gary S. Austin on 2/10/2009 denying 7 Motion to substitute name of Respondent and directing Clerk to correct name of Respondent to read Anthony Hedgpeth. (Lundstrom, T)

1 2 3 4 5 6 7 8 9 10 DAMON MARCELL ROGERS, 11 Petitioner, 12 v. 13 ANTHONY HEDGPETH, Warden, 14 Respondent. 15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. 18 On January 13, 2009, Petitioner filed the instant federal habeas petition naming as 19 Respondent, "Mr. Hedgpeta." On February 2, 2009, Petitioner filed a motion to substitute the 20 respondent in this matter. He acknowledges that the named respondent is the warden at his 21 institution, but he states the respondent should be a victim or witness from his underlying state case. 22 A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer 23 having custody of him as the respondent to the petition. Rule 2 (a) of the Rules Governing § 2254 24 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme 25 Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of an incarcerated 26 petitioner is the warden of the prison in which the petitioner is incarcerated because the warden has 27 "day-to-day control over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 28
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) 1:09-CV-00111 GSA HC ORDER DENYING PETITIONER'S MOTION TO SUBSTITUTE NAME OF RESPONDENT ORDER DIRECTING CLERK OF COURT TO CORRECT NAME OF RESPONDENT

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1992); see also, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Therefore, Petitioner did name the proper respondent in this matter in the original petition. The victim or witness to the crime are not appropriate respondents. The Court further notes that Respondent's name is misspelled and should be "Hedgpeth" rather than "Hedgpeta." ORDER Accordingly, IT IS HEREBY ORDERED: 1) Petitioner's motion to substitute the named respondent is DENIED; and 2) The Clerk of Court is DIRECTED to correct the name of Respondent to read "ANTHONY HEDGPETH," instead of "MR. HEDGPETA."

IT IS SO ORDERED. Dated: 6i0kij

February 10, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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