Owens v. Kings County

Filing 10

ORDER to SHOW CAUSE Why Petition Should Not Be Dismissed For Lack of Jurisdiction, signed by Magistrate Judge Dennis L. Beck on 10/15/2010. Petitioner's Show Cause Response due by 11/22/2010. (Jessen, A)

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(HC) Owens v. Kings County Doc. 10 1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 KINGS COUNTY, 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 On August 30, 2010, Petitioner filed the instant petition for writ of habeas corpus in the 18 United States District Court for the Eastern District of California, Sacramento Division. The 19 petition was transferred to this Court on September 10, 2010. 20 Petitioner challenges a 2008 conviction in the California Superior Court for the County of 21 Kings. 22 I. 23 The Court has conducted a preliminary review of the Petition and finds it is without 24 jurisdiction to hear the case as Petitioner has named an improper respondent. 25 A petitioner seeking habeas corpus relief under 28 U.S.C. 2254 must name the state 26 officer having custody of him as the respondent to the petition. Rule 2 (a) of the Rules 27 Governing 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. 28 1 Dockets.Justia.com UNITED STATES DISTRICT COURT RONAL OWENS, Petitioner, v. 1:10-cv-01644-OWW-DLB (HC) ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR LACK OF JURISDICTION [Doc. 1] / Improper Respondent 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 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. 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. In this case, Petitioner names Kings County as Respondent. Although Petitioner was convicted in Kings County, the County cannot be considered the person having day-to-day control over Petitioner. Petitioner is currently in the custody of the Kern Valley State Prison and the Warden of that facility is Kelly Harrington. 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 (2d 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). II. Exhaustion of State Court Remedies In reviewing Petitioner's petition it is not clear what, if any, claims were exhausted in the California Supreme Court. A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-55 (1991); Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 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 1198, 1203 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988). A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66, 115 S.Ct. at 888; Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). For example, if a petitioner wishes to claim that the trial court violated his due process rights "he must say so, not only in federal court but in state court." Duncan, 513 U.S. at 366, 115 S.Ct. at 888. Because it is unclear what, if any, claims presented in the instant federal petition for writ of habeas corpus were exhausted in the state's highest court, Petitioner will be ordered to show cause regarding exhaustion. If possible, Petitioner should present to the Court documentary evidence that the claims were indeed presented to the California Supreme Court.1 Accordingly, it is HEREBY ORDERED that: 1. Petitioner SHALL SHOW CAUSE why the Petition should not be dismissed by AMENDING the Petition to name a proper respondent and show cause as to what claims, if any, were presented to the state's highest court 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 A copy of the California Supreme Court's denial alone is insufficient to demonstrate exhaustion. The p r o p e r documentation to provide would be a copy of the Petition filed in the California Supreme Court that includes th e claim now presented and a file stamp showing that it was indeed filed in that Court. 1 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 2. 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. Failure to comply with this order may result in the action be dismissed for failure to comply with a court order. Local Rule 11-110. IT IS SO ORDERED. Dated: 3b142a October 15, 2010 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 4

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