Shehee v. Audrey King

Filing 6

ORDER Requiring Petitioner To File Motion To Amend The Petition To Name The Correct Respondent, Thirty Day Deadline, signed by Magistrate Judge Jennifer L. Thurston on 9/20/2012. (Filing Deadline: 10/25/2012) (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Petitioner,
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v.
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PEOPLE OF THE STATE OF CALIFORNIA, )
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Respondent.
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GREGORY ELL SHEHEE,

Case No.: 1:12-cv-01395-JLT
ORDER REQUIRING PETITIONER TO FILE
MOTION TO AMEND THE PETITION TO NAME
THE CORRECT RESPONDENT
THIRTY DAY DEADLINE

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Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.

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On August 14, 2012, Petitioner filed the instant federal petition. Rule 4 of the Rules

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Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of

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habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the face of the petition .

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. . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases; see also

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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A petition for habeas corpus should not be

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dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were

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

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A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer
having custody of him as the respondent to the petition. Rule 2 (a) of the Rules Governing § 2254
Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme
Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of an incarcerated
petitioner is the warden of the prison in which the petitioner is incarcerated because the warden has
"day-to-day control over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.
1992); see also, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). However, the
chief officer in charge of state penal institutions is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21
F.3d at 360. Where a petitioner is on probation or parole, the proper respondent is his probation or
parole officer and the official in charge of the parole or probation agency or state correctional agency.
Id.
Here, Petitioner has named as Respondent the People of the State of California. However, the
People of the State of California are not the warden or chief officer of the institution where Petitioner
is confined and, thus, does not have day-to-day control over Petitioner. Petitioner is presently
confined at the Coalinga State Hospital, Coalinga, California. The current director or warden of that
facility is the person Petitioner should name as Respondent.
Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition for
lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 1326
(9th Cir. 1970); see also, Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd Cir. 1976).
However, the Court will give Petitioner the opportunity to cure this defect by amending the
petition to name a proper respondent, such as the warden of his facility. See West v. Louisiana,
478 F.2d 1026, 1029 (5th Cir.1973), vacated in part on other grounds, 510 F.2d 363 (5th Cir.1975)
(en banc) (allowing petitioner to amend petition to name proper respondent); Ashley v. State of
Washington, 394 F.2d 125 (9th Cir. 1968) (same).
In the interests of judicial economy, Petitioner need not file an amended petition. Instead,
Petitioner can satisfy this deficiency in his petition by filing a motion entitled "Motion to Amend
the Petition to Name a Proper Respondent" wherein Petitioner may name the proper
respondent in this action.
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ORDER

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Accordingly, it is HEREBY ORDERED that Petitioner is granted thirty (30) days from the
date of service of this order in which to file a motion to amend the instant petition to name a proper
respondent. Failure to amend the petition and state a proper respondent will result in a
recommendation that the petition be dismissed for lack of jurisdiction.

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IT IS SO ORDERED.

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Dated:

September 20, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

9j7khijed

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