Ortega v. People of the State of California

Filing 7

ORDER GRANTING Petitioner Leave to File a Motion to Amend the Petition and Name a Proper Respondent no later than thirty (30) Days after the date of service of this order,signed by Magistrate Judge Sheila K. Oberto on 01/18/2012. (30 Day Deadline) (Martin-Gill, S)

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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.
PEOPLE OF THE STATE OF
CALIFORNIA,

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Respondent.
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1:12-cv—00070-SKO-HC
ORDER GRANTING PETITIONER LEAVE
TO FILE A MOTION TO AMEND THE
PETITION AND NAME A PROPER
RESPONDENT NO LATER THAN THIRTY
(30) DAYS AFTER THE DATE OF
SERVICE OF THIS ORDER

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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 302 and 303.

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the Court is Petitioner’s petition, which was filed in the

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Sacramento Division of this Court on December 23, 2011, and

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transferred to this division on January 13, 2012.

Pending before

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I.

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Rule 4 of the Rules Governing § 2254 Cases in the United

Screening the Petition

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States District Courts (Habeas Rules) requires the Court to make

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a preliminary review of each petition for writ of habeas corpus.

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The Court must summarily dismiss a petition "[i]f it plainly

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appears from the petition and any attached exhibits that the

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petitioner is not entitled to relief in the district court....”
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Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.

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1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.

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1990).

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The Court may dismiss a petition for writ of habeas corpus

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either on its own motion under Rule 4, pursuant to the

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respondent's motion to dismiss, or after an answer to the

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petition has been filed.

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8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43

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(9th Cir. 2001).

Advisory Committee Notes to Habeas Rule

A petition for habeas corpus should not be

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dismissed without leave to amend unless it appears that no

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tenable claim for relief can be pleaded were such leave granted.

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Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

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II.

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In this case, Petitioner named as Respondent the People of

Petitioner’s Failure to Name a Proper Respondent

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the State of California.

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Valley State Prison located in Delano, California.

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that facility is Martin Biter.

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Petitioner is incarcerated at the Kern
The warden at

A petitioner seeking habeas corpus relief under 28 U.S.C.

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§ 2254 must name the state officer having custody of him as the

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respondent to the petition.

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Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California

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Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

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person having custody of an incarcerated petitioner is the warden

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of the prison in which the petitioner is incarcerated because the

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warden has "day-to-day control over" the petitioner and thus can

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produce the petitioner.

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378, 379 (9th Cir. 1992); see also, Stanley v. California Supreme

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Court, 21 F.3d 359, 360 (9th Cir. 1994).

Habeas Rule 2(a); Ortiz-Sandoval v.

Normally, the

Brittingham v. United States, 982 F.2d

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However, the chief

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officer in charge of state penal institutions is also

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appropriate.

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Where a petitioner is on probation or parole, the proper

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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

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agency.

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Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360.

Id.

Petitioner’s failure to name a proper respondent requires

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dismissal of his habeas petition for lack of jurisdiction.

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Stanley, 21 F.3d at 360.

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However, the Court will give Petitioner the opportunity to

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cure this defect by amending the petition to name a proper

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respondent, such as the warden of his facility.

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Morris, 363 F.3d 891, 893-94 (9th Cir. 2004).

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judicial economy, Petitioner need not file an amended petition.

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Instead, Petitioner may file a motion entitled "Motion to Amend

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the Petition to Name a Proper Respondent" wherein Petitioner may

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name the proper respondent in this action.

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III.

See, In re
In the interest of

Order Granting Leave to File a Motion to Amend
the Petition

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Accordingly, Petitioner is GRANTED thirty (30) days from the
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date of service of this order in which to file a motion to amend
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the instant petition and name a proper respondent.

Failure to

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amend the petition to name a proper respondent will result in the
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dismissal of the petition for lack of jurisdiction.
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IT IS SO ORDERED.
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Dated:
ie14hj

January 18, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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