Perez v. On Habeas Corpus

Filing 5

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 12/6/12. Thirty Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARK LEON PEREZ,

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Petitioner,

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v.
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ON HABEAS CORPUS,
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Respondent.
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1:12-cv—01920-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 and in

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forma pauperis with a petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254.1

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Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules

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302 and 303.

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which was filed in this Court on November 27, 2012.

The matter has been referred to the

Pending before the Court is Petitioner’s petition,

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I.

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

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Screening the Petition

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

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Although Petitioner has submitted his petition on a form for prisoners
proceeding pursuant to 28 U.S.C. § 2241, the Court notes that Petitioner is
serving a sentence imposed by a state court. Thus, the Court understands
Petitioner to be proceeding pursuant to § 2254.

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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
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).

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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).

Advisory Committee Notes to Habeas Rule

A petition for habeas corpus should not be

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II.

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In this case, Petitioner named no respondent.

Petitioner’s Failure to Name a Proper Respondent
Petitioner is

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incarcerated at the California State Prison at Solano (CSP-S).

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(Pet., doc. 1, 1.)

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Department of Corrections and Rehabilitation (CDCR) reflects that

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the warden at that facility is Gary Swarthout.2

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The official website of the California

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

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The Court may take judicial notice of facts that are capable of
accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned, including undisputed information posted on official
websites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331,
333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d
992, 999 (9th Cir. 2010). The address of the official website for the CDCR is
http://www.cdcr.ca.gov.

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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

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

Generally, the

Brittingham v. United States, 982 F.2d

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

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officer in charge of state penal institutions, such as Matthew

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Cate, the Secretary of the CDCR, is also appropriate.

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

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However, the chief

Ortiz-

Petitioner’s failure to name a proper respondent may require

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dismissal of his habeas petition for a failure to name a person

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who can produce the petitioner in response to an order of the

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Court and thereby to secure personal jurisdiction.

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Idaho, 392 F.3d 350, 355 n.3 (9th Cir. 2004).

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ask sua sponte whether the respondent who is named has the power

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to order the petitioner’s release.

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grant effective relief, and thus it should not hear the case

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unless the petition is amended to name a respondent who can grant

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the desired relief.

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See, Smith v.

This Court must

If not, the Court may not

Id.

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 in
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See, In re
In the interest of

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a separate document.

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entitled "Motion to Amend the Petition to Name a Proper

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Respondent" wherein Petitioner may name the proper respondent in

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this action.

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III.

Instead, Petitioner may file a motion

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 and state a proper respondent will result in
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dismissal of the petition for lack of jurisdiction or failure to
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name as respondent a person with the power to produce the
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petitioner.
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IT IS SO ORDERED.
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Dated:
ie14hj

December 6, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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