Confectioner v. California Department of Corrections and Rehabilitation

Filing 9

ORDER GRANTING Petitioner Leave to file a motion to amend the Petition and name a proper Repondent 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) Confectioner v. California Department of Corrections and Rehabilitation

Doc. 9

1 2 3 4 5 6 7 8 9 10 SAMUEL LOFTY CONFECTIONER, 11 Petitioner, 12 13 14 15 16 17 18 Petitioner is a state prisoner proceeding pro se with a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to 21 the jurisdiction of the United States Magistrate Judge to conduct 22 all further proceedings in the case, including the entry of final 23 judgment, by manifesting consent in a signed writing filed by 24 Petitioner on November 6, 2009, and January 14, 2010. (Docs. 3, 25 7). 26 Pending before the Court is Petitioner's petition, which was 27 filed in this Court on November 5, 2009. 28 1
Dockets.Justia.com

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Respondent.

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

1:09-cv--01976-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

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I.

Screening the Petition

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly 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, a parolee challenging his criminal convictions, named as Respondent the "California Department of Corrections and Rehabilitation." (Pet. 1.)

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). 2 Normally, the

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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 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.

Here, Petitioner did not name his parole officer or the proper official. 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. 2004). See, In re Morris, 363 F.3d 891, 893-94 (9th Cir.

In the interest of judicial economy, Petitioner need not Instead, Petitioner may file a motion

file an amended petition.

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

27 date of service of this order in which to file a motion to amend 28 3

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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: ie14hj July 12, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

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