Hubbard v. Corcoran State Prison (4B)

Filing 11

ORDER REQUIRING Petitioner to Amend Petition to Name Proper Respondent, signed by Magistrate Judge Jennifer L. Thurston on 2/21/14: Thirty Day Deadline. (Hellings, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

ZANE MOLINA HUBBARD,
Petitioner,

12
13

v.

14

STATE OF CALIFORNIA,

15

Respondent.

16

)
)
)
)
)
)
)
)
)
)
)

Case No.: 1:13-cv-01758-JLT
ORDER REQUIRING PETITIONER TO AMEND
PETITION TO NAME PROPER RESPONDENT
THIRTY DAY DEADLINE

17
18

Petitioner is a state prisoner proceeding through retained counsel with a petition for writ of

19

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed the original petition on October 23, 2013,

20

naming Corcoran State Prison as Respondent. (Doc. 1). On November 14, 2013, the Court issued an

21

order requiring Petitioner to file an amended petition that, inter alia, named the correct Respondent,

22

i.e., the present warden of his facility—Connie Gipson. (Doc. 7). On December 6, 2013, Petitioner

23

filed his first amended petition, naming the “State of California” as Respondent. (Doc. 9)

24

PROCEDURAL HISTORY

25

A. Procedural Grounds for Summary Dismissal.

26

Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:

27

If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled
to relief in the district court, the judge must dismiss the petition and direct the clerk to notify
the petitioner.

28

1

1

The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of

2

habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss,

3

or after an answer to the petition has been filed. A petition for habeas corpus should not be dismissed

4

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

5

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

6

B. Failure to Name A Proper Respondent.

7

A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer

8

having custody of him as the respondent to the petition. Rule 2 (a) of the Rules Governing § 2254

9

Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme

10

Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of an incarcerated

11

petitioner is the warden of the prison in which the petitioner is incarcerated because the warden has

12

"day-to-day control over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.

13

1992); see also, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). However, the

14

chief officer in charge of state penal institutions is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21

15

F.3d at 360. Where a petitioner is on probation or parole, the proper respondent is his probation or

16

parole officer and the official in charge of the parole or probation agency or state correctional agency.

17

Id.

18

Here, Petitioner has named as Respondent “the State of California.” However, “the State of

19

California” is not the warden or chief officer of the institution where Petitioner is confined and, thus,

20

does not have day-to-day control over Petitioner. Petitioner is presently confined at the California

21

State Prison, Corcoran, California. The current director or warden of that facility is Connie Gipson.

22

This is the person Petitioner should name as Respondent.

23

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

24

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

25

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

26

Cir. 1976). However, the Court will give Petitioner the opportunity to cure this defect by

27

amending the petition to name a proper respondent, e.g., the warden of his facility. See West v.

28

Louisiana, 478 F.2d 1026, 1029 (5th Cir.1973), vacated in part on other grounds, 510 F.2d 363 (5th
2

1

Cir.1975) (en banc) (allowing petitioner to amend petition to name proper respondent); Ashley v. State

2

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

3

In the interests of judicial economy, Petitioner need not file a second amended petition.

4

Instead, Petitioner can satisfy this deficiency in his first amended petition by filing a motion

5

entitled "Motion to Amend the First Amended Petition to Name a Proper Respondent" wherein

6

Petitioner may name the proper respondent in this action.

7

Accordingly, it is HEREBY ORDERED that:

8

1. Petitioner is GRANTED thirty (30) days from the date of service of this Order to SUBMIT
a Motion to Amend the First Amended Petition to Name a Proper Respondent.

9
10

Petitioner is forewarned that his failure to comply with this Order will result in an Order

11

of Dismissal or a Recommendation that the petition be dismissed pursuant to Local Rule 110, for

12

lack of habeas jurisdiction.

13
14
15
16

IT IS SO ORDERED.
Dated:

February 21, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
3