Miller v. Warden

Filing 5

ORDER to SHOW CAUSE Why Petition for Writ of Habeas Corpus Should Not be Dismissed for Lack of Jurisdiction, signed by Magistrate Judge Barbara A. McAuliffe on 3/11/2013. Show Cause Response Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MARION FRANKLIN MILLER,

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Petitioner,

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1:13-cv-00324-BAM (HC)
ORDER TO SHOW CAUSE WHY PETITION
FOR WRIT OF HABEAS CORPUS SHOULD
NOT BE DISMISSED FOR LACK OF
JURISDICTION

v.

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WARDEN,

[ECF No. 1]

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Respondent.
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/

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Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28
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U.S.C. § 2254.
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Petitioner filed the instant petition on March 7, 2013. The Court has conducted a
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preliminary review of the Petition and finds it is without jurisdiction to hear the case as Petitioner
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has named an improper respondent.
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A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state
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officer having custody of him as the respondent to the petition. Rule 2 (a) of the Rules
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Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v.
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California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having
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custody of an incarcerated petitioner is the warden of the prison in which the petitioner is
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incarcerated because the warden has "day-to-day control over" the petitioner. Brittingham v.
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United States, 982 F.2d 378, 379 (9th Cir. 1992); see also Stanley v. California Supreme Court,
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21 F.3d 359, 360 (9th Cir. 1994). However, the chief officer in charge of state penal institutions
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is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on

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probation or parole, the proper 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 agency. Id.

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In this case, Petitioner simply listed “Warden” as the name of the Respondent.

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Although Petitioner is currently in the custody of the California Department of Corrections, he

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must specifically name the individual person having day-to-day control over Petitioner.

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Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition

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for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326,

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1326 (9th Cir. 1970); see, also, Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2d

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Cir. 1976). However, in this case, the Court will give petitioner the opportunity to cure his defect

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by amending the petition to name a proper respondent. See, West v. Louisiana, 478 F.2d 1026,

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1029 (5th Cir.1973), vacated in part on other grounds, 510 F.2d 363 (5th Cir.1975) (en banc)

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(allowing petitioner to amend petition to name proper respondent); Ashley v. State of

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Washington, 394 F.2d 125 (9th Cir. 1968) (same).

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Accordingly, IT IS HEREBY ORDERED THAT:

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1.

Petitioner SHALL SHOW CAUSE why the Petition should not be dismissed by

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AMENDING the Petition to name a proper respondent within thirty (30) days of

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the date of service of this order. To comply with this directive Petitioner need

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only submit a pleading titled “Amendment to Petition” in which he amends the

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petition to name a proper respondent. As noted above, that individual is the

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person having day to day custody over petitioner - usually the warden of the

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institution where he is confined. The Amendment should be clearly and boldly

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captioned as such and include the case number referenced above, and be an

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original signed under penalty of perjury.

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IT IS SO ORDERED.
Dated:
10c20k

March 11, 2013

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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