Beard v. People of The State of California

Filing 10

ORDER GRANTING Petitioner Leave to File a Motion to Amend the Petition and Name a Proper Respondent no Later Than Thirty (30) Days After the Date of Service of This Order, signed by Magistrate Judge Sheila K. Oberto on 7/12/2010. (Filing Deadline: 8/17/2010.) (Marrujo, C)

(HC) Beard v. People of The State of California

Doc. 10

1 2 3 4 5 6 7 8 9 10 ANTHONY MARCEL BEARD, 11 Petitioner, 12 13 14 15 16 17 Petitioner is a state prisoner proceeding in forma pauperis 18 and pro se with a petition for writ of habeas corpus pursuant to 19 28 U.S.C. § 2254. 20 Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 21 303. 22 was filed in this Court on October 5, 2009. 23 I. Screening the Petition 24 Rule 4 of the Rules Governing § 2254 Cases in the United 25 States District Courts (Habeas Rules) requires the Court to make 26 a preliminary review of each petition for writ of habeas corpus. 27 The Court must summarily dismiss a petition "[i]f it plainly 28 1
Dockets.Justia.com

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

v. PEOPLE OF THE STATE OF CALIFORNIA, Respondent.

) ) ) ) ) ) ) ) ) ) ) )

1:09-cv--01750-SKO-HC ORDER GRANTING PETITIONER LEAVE TO FILE A MOTION TO AMEND THE PETITION AND NAME A PROPER RESPONDENT NO LATER THAN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER

The matter has been referred to the Magistrate

Pending before the Court is Petitioner's petition, which

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appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). The Court may dismiss a petition for writ of habeas corpus either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule

8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). A petition for habeas corpus should not be

dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). II. Petitioner's Failure to Name a Proper Respondent

In this case, Petitioner named the people of the state of California and Attorney General Edmund G. Brown, Jr., as Respondents. Petitioner is incarcerated at the Wasco State The warden at that facility

Prison located in Wasco, California. is Randy Grounds.

A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer having custody of him as the respondent to the petition. Habeas Rule 2(a); 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 and thus can 2

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produce 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. 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. Morris, 363 F.3d 891, 893-94 (9th Cir. 2004). See, In re In the interest 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. III. Order Granting Leave to File a Motion to Amend the Petition Accordingly, Petitioner is GRANTED thirty (30) days from the

23 date of service of this order in which to file a motion to amend 24 the instant petition and name a proper respondent. 25 amend the petition and state a proper respondent will result in a 26 /// 27 /// 28 3 Failure to

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recommendation that the petition be dismissed for lack of jurisdiction.

IT IS SO ORDERED. Dated: ie14hj July 12, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

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