Butler v. Unknown

Filing 14

ORDER Granting Petitioner's Motion to Amend the Petition to Name a Proper Respondent 13 ; ORDER Directing the Clerk to Change the Name of Respondent; ORDER Requiring Respondent to File a Response to the Petition; ORDER Setting a Briefing Schedule; ORDER Directing the Clerk to Serve Documents on the Attorney General, signed by Magistrate Judge Barbara A. McAuliffe on 4/8/15. (Verduzco, M)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 KAREN BUTLER, Case No. 1:14-cv-00645-BAM-HC 12 ORDER GRANTING PETITIONER=S MOTION TO AMEND THE PETITION TO NAME A PROPER RESPONDENT (Doc. 13) Petitioner, 13 14 v. ORDER DIRECTING THE CLERK TO CHANGE THE NAME OF THE RESPONDENT 15 16 17 DEBORAH K. JOHNSON, Warden, 18 Respondent. ORDER REQUIRING RESPONDENT TO FILE A RESPONSE TO THE PETITION ORDER SETTING A BRIEFING SCHEDULE ORDER DIRECTING THE CLERK TO SERVE DOCUMENTS ON THE ATTORNEY GENERAL 19 20 21 22 23 24 25 26 27 28 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting Petitioner’s consent in a writing signed by Petitioner and filed on May 8, 2014. Pending before the Court is the Petitioner’s motion to amend the first amended petition 1 1 (FAP) to name as Respondent Deborah K. Johnson, the warden of 2 Petitioner’s institution of confinement, which was filed on February 3 26, 2015, in response to the Court’s earlier order permitting 4 Petitioner to file such a motion without having to file a completely 5 new amended petition. 6 I. Motion to Amend the Petition 7 A petitioner seeking habeas relief must name the state officer 8 having custody of him or her as the respondent to the petition. 9 Rule 2(a) of the Rules Governing Section 2254 Cases; Ortiz-Sandoval 10 v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California 11 Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the 12 person having custody of the prisoner is the warden of the prison 13 because the warden has Aday to day control over@ the prisoner. 14 Brittingham v. United States, 982. F.2d 378, 279 (9th Cir. 1992). 15 Therefore, Petitioner=s request is proper. 16 II. Order to File a Response to the Petition 17 The Court has conducted a preliminary review of the petition. 18 It is not clear from the face of the petition whether Petitioner is 19 entitled to relief. 28 U.S.C. ' 2243. Accordingly, pursuant to 20 Rule 4 of the Rules Governing Section 2254 Cases and Rule 16 of the 1 21 Federal Rules of Civil Procedure, the Court will direct Respondent 22 to file a response and will issue a scheduling order. 23 /// 24 1 The Federal Rules of Civil Procedure Aapply to proceedings for habeas corpus 25 ... to the extent that the practice in those proceedings (A) is not specified in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing 26 Section 2255 Cases; and (B) has previously conformed to the practice in civil actions.@ Fed. R. Civ. P. 81(a)(4). Rule 12 also provides A[t]he Federal Rules of 27 Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.@ 28 Rule 12, Rules Governing Section 2254 Cases. 2 1 III. Disposition 2 Accordingly, it is ORDERED that: 3 1) Petitioner’s motion for leave to amend the petition to name 4 Warden Deborah K. Johnson as Respondent in this matter is GRANTED; 5 and 2) 6 The Clerk of Court is DIRECTED to change the name of 7 Respondent to Deborah K. Johnson, Warden; and 3) 8 Respondent SHALL FILE a RESPONSE to the first amended 2 9 petition within SIXTY (60) days of the date of service of this 10 order. See Rule 4, Rules Governing Section 2254 Cases; Cluchette v. 11 Rushen, 770 F.2d 1469, 1473-1474 (9th Cir. 1985) (court has 12 discretion to fix time for filing a response). A response can be 13 made by filing one of the following: A. 14 An ANSWER addressing the merits of the petition. 15 Respondent SHALL INCLUDE with the ANSWER any and all 16 transcripts or other documents necessary for the 17 resolution of the issues presented in the petition. 18 See Rule 5, Rules Governing Section 2254 Cases. 19 argument by Respondent that a claim of Petitioner has 20 been procedurally defaulted SHALL BE MADE in the 21 ANSWER, but must also address the merits of the claim 22 asserted. B. 23 A MOTION TO DISMISS the petition. Any A motion to dismiss 24 SHALL INCLUDE copies of all Petitioner’s state court 25 filings and dispositive rulings. 26 Governing Section 2254 Cases.3 27 2 See Rule 5, Rules Respondent is advised that a scanned copy of the petition is available in the 28 Court’s electronic case filing system (CM/ECF). 3 4) 1 If Respondent files an answer to the petition, Petitioner 2 MAY FILE a traverse within THIRTY (30) days of the date 3 Respondent’s answer is filed with the Court. 4 traverse is filed, the petition and answer are deemed 5 submitted at the expiration of the thirty (30) days. 5) 6 If no If Respondent files a motion to dismiss, Petitioner SHALL 7 FILE an opposition or statement of non-opposition within 8 TWENTY-ONE (21) days of the date Respondent’s motion is 9 filed with the Court. If no opposition is filed, the 10 motion to dismiss is deemed submitted at the expiration of 11 thirty (30) days. 12 to dismiss SHALL BE FILED within SEVEN (7) DAYS after the 13 opposition is served. 6) 14 Any reply to an opposition to the motion Unless already submitted, both Respondent and Petitioner 15 SHALL COMPLETE AND RETURN to the Court within THIRTY (30) 16 days a consent/decline form indicating whether the party 17 consents or declines to consent to the jurisdiction of the 18 United States Magistrate Judge pursuant to 28 U.S.C. 19 § 636(c)(1). 7) 20 The Clerk of the Court is DIRECTED to SERVE a copy of this order on the Attorney General or his representative. 21 22 23 3 Rule 4 of the Rules Governing Section 2254 Cases provides that upon the Court’s 24 determination that summary dismissal is inappropriate, the “judge must order the respondent to file an answer, motion or other response within a fixed time, or to Rule 4, Rules Governing Section 2254 Cases; see also Advisory Committee Notes to Rules 4 and 5 of the Rules Governing Section 2254 Cases (stating that a dismissal may obviate the need for filing an answer on the substantive merits of the petition and that the respondent may file a motion to dismiss for failure to exhaust); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (providing that a motion to dismiss pursuant to Rule 4 is proper in a federal habeas proceeding). 25 take other action the judge may order.” 26 27 28 4 1 All motions shall be submitted on the record and briefs filed 2 without oral argument unless otherwise ordered by the Court. 3 Rule 230(l). Local Requests for extensions of time will only be granted 4 upon a showing of good cause. All provisions of Local Rule 110 are 5 applicable to this order. 6 7 IT IS SO ORDERED. 8 9 Dated: /s/ Barbara April 8, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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