Dews v. Superior Court of State of California

Filing 8

ORDER to SHOW CAUSE Why Petition for Writ of Habeas Corpus Should Not Be Dismissed for Lack of Jurisdiction, signed by Magistrate Judge Barbara A. McAuliffe on 12/21/11. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CLARENCE LEON DEWS,

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1:11-cv-02050-BAM (HC)

Petitioner,
ORDER TO SHOW CAUSE WHY PETITION
FOR WRIT OF HABEAS CORPUS SHOULD
NOT BE DISMISSED FOR LACK OF
JURISDICTION

v.

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SUPERIOR COURT OF STATE OF
CALIFORNIA,

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[Doc. 3]

Respondent.
/

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Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.
Petitioner filed the instant petition for writ of habeas corpus on December 7, 2011, in the

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United States District Court for the Central District of California. The petition was transferred to

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this Court on December 8, 2011.

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Petitioner filed the instant petition on October 25, 2004, in the United Sates District Court

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for the Eastern District of California, Sacramento Division. By order of November 1, 2004, the

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action was transferred to the Fresno Division.

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The Court has conducted a preliminary review of the Petition and finds it is without
jurisdiction to hear the case as Petitioner has named an improper respondent.
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 names the Superior Court of the State of California as Respondent.

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Petitioner is currently in the custody of the California Department of Corrections, and the

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Superior Court of the State of California cannot be considered the person having day-to-day

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control over Petitioner.

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Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition

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for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326,

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1326 (9th Cir. 1970); see, also, Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2d

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Cir. 1976). However, in this case, the Court will give petitioner the opportunity to cure his defect

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by amending the petition to name a proper respondent. See, West v. Louisiana, 478 F.2d 1026,

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1029 (5th Cir.1973), vacated in part on other grounds, 510 F.2d 363 (5th Cir.1975) (en banc)

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(allowing petitioner to amend petition to name proper respondent); Ashley v. State of

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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:
10c20k

December 21, 2011

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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