Condon v. People Of California

Filing 15

ORDER signed by Magistrate Judge Gary S. Austin on 6/18/2013 denying 7 Motion to Stay without prejudice; granting leave to name a proper respondent and dismissing claim. (Filing Deadline: 7/22/2013).(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JULIE CONDON,

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Petitioner,

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v.

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PEOPLE OF STATE OF CALIFORNIA,

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Respondent.

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Case No.: 1:13-cv-00792 GSA HC
ORDER DENYING MOTION FOR STAY
WITHOUT PREJUDICE
ORDER GRANTING LEAVE TO NAME A
PROPER RESPONDENT
ORDER DISMISSING CLAIM

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Petitioner is a state prisoner proceeding pro se with a Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254. She has consented to the jurisdiction of the magistrate judge pursuant to

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28 U.S.C. § 636(c).

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On April 5, 2013, Petitioner filed a petition for writ of habeas corpus in the Sacramento

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Division of this Court. On May 13, 2013, Petitioner filed a first amended petition along with a motion

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to stay the petition pending exhaustion of state remedies. Because the amended petition challenges a

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conviction out of Tuolumne County, the matter was transferred to the Fresno Division on May 24,

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2013, and received in this Court.
DISCUSSION

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I.

Preliminary Review of Petition
Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review

of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears
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from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254

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Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A petition for habeas corpus

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should not be dismissed without leave to amend unless it appears that no tenable claim for relief can

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

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II.

Motion for Stay
A district court has discretion to stay a petition which it may validly consider on the merits.

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Rhines v. Weber, 544 U.S. 269, 276 (2005); Calderon v. United States Dist. Court (Taylor), 134 F.3d

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981, 987-88 (9th Cir. 1998); Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir.), cert. denied, 519

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U.S. 1102 (1997). However, the Supreme Court has held that this discretion is circumscribed by the

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Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Rhines, 544 U.S. at 276. In light of

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AEDPA’s objectives, “stay and abeyance [is] available only in limited circumstances” and “is only

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appropriate when the district court determines there was good cause for the petitioner’s failure to

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exhaust h[er] claims first in state court.” Id. at 277. Even if Petitioner were to demonstrate good cause

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for that failure, “the district court would abuse its discretion if it were to grant him a stay when h[er]

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unexhausted claims are plainly meritless.” Id.
Petitioner sets forth two claims in her amended petition and she states these two claims have

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been exhausted. She asks that the amended petition be stayed while she returns to state court to

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exhaust additional claims. However, Petitioner fails to identify the additional claims. Thus, the Court

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cannot conduct the necessary inquiry to determine whether the claims are plainly meritless. Moreover,

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she fails to demonstrate good cause for a stay. She does not state why she failed to present her claims

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to the state court prior to filing her federal petition. Accordingly, the motion for stay will be denied

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without prejudice.

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III.

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Failure to Name a Proper Respondent
Petitioner names the People of the State of California as Respondent. A petitioner seeking

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habeas corpus relief under 28 U.S.C. § 2254 must name the state officer having custody of her as the

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respondent to the petition. Rule 2(a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. Gomez,

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81 F.3d 891, 894 (9th Cir.1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.

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1994). Normally, the person having custody of an incarcerated petitioner is the warden of the prison
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in which the petitioner is incarcerated because the warden has "day-to-day control over" the petitioner.

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Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also Stanley v. California

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Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). However, the chief officer in charge of state penal

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institutions is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is

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on probation or parole, the proper respondent is her probation or parole officer and the official in

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charge of the parole or probation agency or state correctional agency. Id.
Petitioner’s failure to name a proper respondent requires dismissal of her habeas petition for

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

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(9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd Cir.1976).

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However, the Court will give Petitioner the opportunity to cure this defect by amending the petition to

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name a proper respondent, such as the warden of her facility. 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 Washington, 394

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F.2d 125 (9th Cir. 1968) (same). In the interests of judicial economy, Petitioner need not file an

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amended petition. Instead, Petitioner may file a motion entitled "Motion to Amend the Petition to

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Name a Proper Respondent" wherein Petitioner may name the proper respondent in this action.

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IV.

Dismissal of Claim

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Petitioner presents the following two claims in her amended petition: (1) She claims the

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prosecutor committed misconduct by failing to disclose information; and (2) She alleges the appellate

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opinion contained an error in the recitation of facts.

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The basic scope of habeas corpus is prescribed by statute. Subsection (c) of Section 2241 of

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Title 28 of the United States Code provides that habeas corpus shall not extend to a prisoner unless she

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is “in custody in violation of the Constitution.” 28 U.S.C. § 2254(a) states:

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The Supreme Court, a Justice thereof, a circuit judge, or a district court shall
entertain an application for a writ of habeas corpus in behalf of a person in
custody pursuant to a judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.

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(emphasis added). See also Rule 1 to the Rules Governing Section 2254 Cases in the United States
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District Court. The Supreme Court has held that “the essence of habeas corpus is an attack by a

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person in custody upon the legality of that custody . . . .” Preiser v. Rodriguez, 411 U.S. 475, 484

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(1973).
Furthermore, in order to succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must

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demonstrate that the adjudication of her claim in state court
resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States; or resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.

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28 U.S.C. § 2254(d)(1),(2).

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In the instant case, with respect to her second claim for relief, Petitioner fails to state a

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cognizable federal claim. She claims the appellate opinion contained an error in the recitation of facts;

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however, she fails to state how this error in any way violated her constitutional rights. Therefore, the

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claim will be dismissed.
ORDER

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Accordingly, IT IS HEREBY ORDERED:

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1) Petitioner’s motion for stay and abeyance is DENIED WITHOUT PREJUDICE;

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2) Petitioner is GRANTED thirty (30) days from the date of service of this order to file a

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motion to amend the petition to name a proper respondent. Petitioner is forewarned that failure to

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comply will result in dismissal of the petition; and
3) Ground Two is DISMISSED from the amended petition.

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IT IS SO ORDERED.

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Dated:

June 18, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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