Ortega v. People of the State of California

Filing 11

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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MARK CURTIS ORTEGA, 10 Petitioner, 11 12 13 14 15 v. MARTIN BITER, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) 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 16 ORDER SETTING A BRIEFING SCHEDULE 17 ORDER DIRECTING THE CLERK TO SERVE DOCUMENTS ON THE ATTORNEY GENERAL 18 19 20 Petitioner is a state prisoner proceeding pro se with a 21 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 22 The matter has been referred to the Magistrate Judge pursuant to 23 28 U.S.C.§ 636(b)(1) and Local Rules 72-302 and 72-303. Pending 24 before the Court is Petitioner’s motion to amend the petition to 25 name as Respondent Martin Biter, Warden of the Kern Valley State 26 Prison located in Delano, California. The motion was filed on 27 February 10, 2012, in response to the Court’s order of January 28 1 1 18, 2012, granting Petitioner leave to file the motion. 2 I. 3 A petitioner seeking habeas relief must name the state Motion to Amend the Petition 4 officer having custody of him or her as the respondent to the 5 petition. 6 Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.1996); Stanley 7 v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.1994). 8 Normally, the person having custody of the prisoner is the warden 9 of the prison because the warden has “day to day control over” Rule 2(a) of the Rules Governing Section 2254 Cases; 10 the prisoner. 11 (9th Cir.1992). Brittingham v. United States, 982 F.2d 378, 279 Therefore, Petitioner’s request is proper. 12 II. 13 The Court has conducted a preliminary review of the Order to File a Response to the Petition 14 petition. 15 Petitioner is entitled to relief. 16 Accordingly, pursuant to Rule 4 of the Rules Governing Section 17 2254 Cases and Rule 16 of the Federal Rules of Civil Procedure,1 18 the Court will direct Respondent to file a response and will 19 issue a scheduling order. It is not clear from the face of the petition whether 28 U.S.C. § 2243. 20 III. 21 Accordingly, it is ORDERED that: 22 1) Petitioner’s motion for leave to amend the petition to 23 Disposition name Warden Martin Biter as Respondent in this matter is GRANTED; 24 25 26 27 28 1 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. 2 1 2 3 and 2) The Clerk of Court is DIRECTED to change the name of Respondent to Martin Biter, Warden; and 4 3) The Court hereby ORDERS: 5 a) Respondent SHALL FILE a RESPONSE to the petition2 within 6 SIXTY (60) days of the date of service of this order. 7 4, Rules Governing Section 2254 Cases; Cluchette v. Rushen, 770 8 F.2d 1469, 1473-1474 (9th Cir. 1985) (court has discretion to fix 9 time for filing a response). 10 See Rule A response can be made by filing one of the following: 11 i. An ANSWER addressing the merits of the petition. 12 Respondent SHALL INCLUDE with the ANSWER any and all transcripts 13 or other documents necessary for the resolution of the issues 14 presented in the petition. 15 2254 Cases. 16 Petitioner has been procedurally defaulted SHALL BE MADE in the 17 ANSWER, but must also address the merits of the claim asserted. 18 See Rule 5, Rules Governing Section Any argument by Respondent that a claim of ii. A MOTION TO DISMISS the petition. A motion to 19 dismiss SHALL INCLUDE copies of all Petitioner’s state court 20 filings and dispositive rulings. 21 Section 2254 Cases.3 See Rule 5, Rules Governing 22 23 24 25 26 27 28 2 Respondent is advised that a scanned copy of the petition is available in the Court’s electronic case filing system (CM/ECF). 3 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). 3 1 b. If Respondent files an answer to the petition, 2 Petitioner MAY FILE a traverse within THIRTY (30) days of the 3 date Respondent’s answer is filed with the Court. 4 is filed, the petition and answer are deemed submitted at the 5 expiration of the thirty (30) days. 6 c. If no traverse If Respondent files a motion to dismiss, Petitioner 7 SHALL FILE an opposition or statement of non-opposition within 8 TWENTY-ONE (21) days of the date Respondent’s motion is filed 9 with the Court. If no opposition is filed, the motion to dismiss 10 is deemed submitted at the expiration of the thirty (30) days. 11 Any reply to an opposition to the motion to dismiss SHALL BE 12 FILED within SEVEN (7) days after the opposition is served. 13 d. Unless already submitted, both Respondent and Petitioner 14 SHALL COMPLETE and RETURN to the Court within THIRTY (30) days a 15 consent/decline form indicating whether the party consents or 16 declines to consent to the jurisdiction of the United States 17 Magistrate Judge pursuant to Title 28 U.S.C. § 636(c)(1). 18 19 e. The Clerk of the Court is DIRECTED to SERVE a copy of this order on the Attorney General or his representative. 20 All motions shall be submitted on the record and briefs 21 filed without oral argument unless otherwise ordered by the 22 Court. 23 granted upon a showing of good cause. 24 Rule 110 are applicable to this order. 25 IT IS SO ORDERED. 26 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 27 28 4

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