Ortega v. People of the State of California
Filing
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ORDER Granting Petitioner's Motion to Amend the Petition and Name a Proper Respondent 10 ; ORDER Directing the Clerk to Change the Name of the Respondent; ORDER Requiring Respondent to File a Response to the Petition; ORDER Setting a Briefing Schedule; ORDER Directing the Clerk to Serve Documents on the Attorney General, signed by Magistrate Judge Sheila K. Oberto on 3/29/12. Respondent name changed to Martin Biter. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARK CURTIS ORTEGA,
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Petitioner,
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v.
MARTIN BITER, Warden,
Respondent.
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1:12-cv—00070-AWI-SKO-HC
ORDER GRANTING PETITIONER’S
MOTION TO AMEND THE PETITION AND
NAME A PROPER RESPONDENT
(Doc. 10)
ORDER DIRECTING THE CLERK TO
CHANGE THE NAME OF THE RESPONDENT
ORDER REQUIRING RESPONDENT TO
FILE A RESPONSE TO THE PETITION
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ORDER SETTING A BRIEFING SCHEDULE
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ORDER DIRECTING THE CLERK TO
SERVE DOCUMENTS ON THE ATTORNEY
GENERAL
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Petitioner is a state prisoner proceeding pro se with a
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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The matter has been referred to the Magistrate Judge pursuant to
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28 U.S.C.§ 636(b)(1) and Local Rules 72-302 and 72-303.
Pending
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before the Court is Petitioner’s motion to amend the petition to
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name as Respondent Martin Biter, Warden of the Kern Valley State
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Prison located in Delano, California.
The motion was filed on
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February 10, 2012, in response to the Court’s order of January
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18, 2012, granting Petitioner leave to file the motion.
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I.
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A petitioner seeking habeas relief must name the state
Motion to Amend the Petition
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officer having custody of him or her as the respondent to the
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petition.
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Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.1996); Stanley
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v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.1994).
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Normally, the person having custody of the prisoner is the warden
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of the prison because the warden has “day to day control over”
Rule 2(a) of the Rules Governing Section 2254 Cases;
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the prisoner.
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(9th Cir.1992).
Brittingham v. United States, 982 F.2d 378, 279
Therefore, Petitioner’s request is proper.
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II.
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The Court has conducted a preliminary review of the
Order to File a Response to the Petition
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petition.
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Petitioner is entitled to relief.
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Accordingly, pursuant to Rule 4 of the Rules Governing Section
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2254 Cases and Rule 16 of the Federal Rules of Civil Procedure,1
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the Court will direct Respondent to file a response and will
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issue a scheduling order.
It is not clear from the face of the petition whether
28 U.S.C. § 2243.
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III.
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Accordingly, it is ORDERED that:
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1) Petitioner’s motion for leave to amend the petition to
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Disposition
name Warden Martin Biter as Respondent in this matter is GRANTED;
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The Federal Rules of Civil Procedure “apply to proceedings for habeas
corpus ... to the extent that the practice in those proceedings (A) is not
specified in a federal statute, the Rules Governing Section 2254 Cases, or the
Rules Governing Section 2255 Cases; and (B) has previously conformed to the
practice in civil actions.” Fed. R. Civ. P. 81(a)(4). Rule 12 also provides
“[t]he Federal Rules of Civil Procedure, to the extent that they are not
inconsistent with any statutory provisions or these rules, may be applied to a
proceeding under these rules.” Rule 12, Rules Governing Section 2254 Cases.
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and
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The Clerk of Court is DIRECTED to change the name of
Respondent to Martin Biter, Warden; and
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3) The Court hereby ORDERS:
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a) Respondent SHALL FILE a RESPONSE to the petition2 within
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SIXTY (60) days of the date of service of this order.
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4, Rules Governing Section 2254 Cases; Cluchette v. Rushen, 770
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F.2d 1469, 1473-1474 (9th Cir. 1985) (court has discretion to fix
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time for filing a response).
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See Rule
A response can be made by filing
one of the following:
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i. An ANSWER addressing the merits of the petition.
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Respondent SHALL INCLUDE with the ANSWER any and all transcripts
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or other documents necessary for the resolution of the issues
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presented in the petition.
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2254 Cases.
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Petitioner has been procedurally defaulted SHALL BE MADE in the
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ANSWER, but must also address the merits of the claim asserted.
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See Rule 5, Rules Governing Section
Any argument by Respondent that a claim of
ii. A MOTION TO DISMISS the petition.
A motion to
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dismiss SHALL INCLUDE copies of all Petitioner’s state court
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filings and dispositive rulings.
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Section 2254 Cases.3
See Rule 5, Rules Governing
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Respondent is advised that a scanned copy of the petition is available
in the Court’s electronic case filing system (CM/ECF).
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Rule 4 of the Rules Governing Section 2254 Cases provides that upon the
Court’s determination that summary dismissal is inappropriate, the “judge must
order the respondent to file an answer, motion, or other response within a
fixed time, or to take other action the judge may order.” Rule 4, Rules
Governing Section 2254 Cases; see also Advisory Committee Notes to Rules 4 and
5 of Rules Governing Section 2254 Cases (stating that a dismissal may obviate
the need for filing an answer on the substantive merits of the petition and
that the respondent may file a motion to dismiss for failure to exhaust);
White v. Lewis , 874 F.2d 599, 602-03 (9th Cir. 1989) (providing that a motion
to dismiss pursuant to Rule 4 is proper in a federal habeas proceeding).
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b.
If Respondent files an answer to the petition,
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Petitioner MAY FILE a traverse within THIRTY (30) days of the
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date Respondent’s answer is filed with the Court.
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is filed, the petition and answer are deemed submitted at the
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expiration of the thirty (30) days.
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c.
If no traverse
If Respondent files a motion to dismiss, Petitioner
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SHALL FILE an opposition or statement of non-opposition within
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TWENTY-ONE (21) days of the date Respondent’s motion is filed
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with the Court.
If no opposition is filed, the motion to dismiss
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is deemed submitted at the expiration of the thirty (30) days.
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Any reply to an opposition to the motion to dismiss SHALL BE
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FILED within SEVEN (7) days after the opposition is served.
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d. Unless already submitted, both Respondent and Petitioner
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SHALL COMPLETE and RETURN to the Court within THIRTY (30) days a
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consent/decline form indicating whether the party consents or
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declines to consent to the jurisdiction of the United States
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Magistrate Judge pursuant to Title 28 U.S.C. § 636(c)(1).
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e. The Clerk of the Court is DIRECTED to SERVE a copy of
this order on the Attorney General or his representative.
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All motions shall be submitted on the record and briefs
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filed without oral argument unless otherwise ordered by the
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Court.
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granted upon a showing of good cause.
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Rule 110 are applicable to this order.
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IT IS SO ORDERED.
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Dated:
ie14hj
Local Rule 230(l).
March 29, 2012
Extensions of time will only be
All provisions of Local
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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