Tovar v. On Habeas Corpus

Filing 5

ORDER to SHOW CAUSE Why 1 Petition should not be Dismissed for Lack of Jurisdiction signed by Magistrate Judge Sandra M. Snyder on 8/11/2011. Show Cause Response due by 9/13/2011.(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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VICTOR TOVAR,

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1:11-cv-01246-SMS (HC)
Petitioner,

ORDER TO SHOW CAUSE WHY PETITION
SHOULD NOT BE DISMISSED FOR LACK
OF JURISDICTION

v.

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[Doc. 1]
ON HABEAS CORPUS,

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Respondent.
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/

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Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28
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U.S.C. § 2254.
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Petitioner filed the instant petition on July 29, 2011. The Court has conducted a
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preliminary review of the Petition and finds it is without jurisdiction to hear the case as Petitioner
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has named an improper respondent.
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A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state
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officer having custody of him as the respondent to the petition. Rule 2 (a) of the Rules
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Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v.
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California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having
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custody of an incarcerated petitioner is the warden of the prison in which the petitioner is
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incarcerated because the warden has "day-to-day control over" the petitioner. Brittingham v.
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United States, 982 F.2d 378, 379 (9th Cir. 1992); see, also, Stanley v. California Supreme Court,
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21 F.3d 359, 360 (9th Cir. 1994). However, the chief officer in charge of state penal institutions
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is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on

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probation or parole, the proper respondent is his probation or parole officer and the official in

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charge of the parole or probation agency or state correctional agency. Id.

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In this case, Petitioner fails to name a Respondent, and merely states “On Habeas Corpus”

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as the person having custody over him. (Pet. at 1.) Petitioner’s failure to name a proper

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respondent requires dismissal of his habeas petition for lack of jurisdiction. Stanley, 21 F.3d at

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360; Olson v. California Adult Auth., 423 F.2d 1326, 1326 (9th Cir. 1970); see, also, Billiteri v.

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United States Bd. Of Parole, 541 F.2d 938, 948 (2d Cir. 1976). However, in this case, the Court

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will give petitioner the opportunity to cure his defect by amending the petition to name a proper

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respondent. See, West v. Louisiana, 478 F.2d 1026, 1029 (5th Cir.1973), vacated in part on

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other grounds, 510 F.2d 363 (5th Cir.1975) (en banc) (allowing petitioner to amend petition to

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name proper respondent); Ashley v. State of Washington, 394 F.2d 125 (9th Cir. 1968) (same).

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Accordingly, the Court HEREBY ORDERS:

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1.

Petitioner SHALL SHOW CAUSE why the Petition should not be dismissed by

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AMENDING the Petition to name a proper respondent within thirty (30) days of

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the date of service of this order. To comply with this directive petitioner need

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only submit a pleading titled “Amendment to Petition” in which he amends the

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petition to name a proper respondent. As noted above, that individual is the

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person having day to day custody over petitioner - usually the warden of the

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institution where he is confined. The Amendment should be clearly and boldly

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captioned as such and include the case number referenced above, and be an

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original signed under penalty of perjury.

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IT IS SO ORDERED.
Dated:
icido3

August 11, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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