Branson v. The People of the State of California

Filing 4

ORDER Requiring Petitioner to Amend Petition to Name Proper Respondent signed by Magistrate Judge Jennifer L. Thurston on 02/17/2015. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 ) ) Petitioner, ) ) v. ) PEOPLE OF THE STATE OF CALIFORNIA, ) ) ) Respondent. ) JAMES WILSON BRANSON, Case No.: 1:15-cv-00184-JLT ORDER REQUIRING PETITIONER TO AMEND PETITION TO NAME PROPER RESPONDENT 30-DAY DEADLINE 16 17 Petitioner is a state prisoner proceeding through retained counsel with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed the instant petition on February 2, 2015. 19 (Doc. 1). 20 PROCEDURAL HISTORY 21 A. Procedural Grounds for Summary Dismissal. 22 Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part: 23 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. 24 25 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 26 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, 27 or after an answer to the petition has been filed. A petition for habeas corpus should not be dismissed 28 without leave to amend unless it appears that no tenable claim for relief can be pleaded were such 1 1 leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 2 B. Failure to Name A Proper Respondent. 3 A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer 4 having custody of him as the respondent to the petition. Rule 2 (a) of the Rules Governing § 2254 5 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme 6 Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of an incarcerated 7 petitioner is the warden of the prison in which the petitioner is incarcerated because the warden has 8 "day-to-day control over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 9 1992); see also, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). However, the 10 chief officer in charge of state penal institutions is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 11 F.3d at 360. Where a petitioner is on probation or parole, the proper respondent is his probation or 12 parole officer and the official in charge of the parole or probation agency or state correctional agency. 13 Id. 14 Here, Petitioner has named as Respondent “the People of the State of California.” However, 15 “the People of the State of California” is not the warden or chief officer of the institution where 16 Petitioner is confined and, thus, does not have day-to-day control over Petitioner. Petitioner is 17 presently confined at the California Institution for Men, Chino, California. The current director or 18 warden of that facility is Tim Perez. This is the person Petitioner should name as Respondent. 19 Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition for 20 lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 1326 21 (9th Cir. 1970); see also, Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd Cir. 1976). 22 However, the Court will give Petitioner the opportunity to cure this defect by amending the 23 petition to name a proper respondent, such as the warden of his facility. See West v. Louisiana, 24 478 F.2d 1026, 1029 (5th Cir.1973), vacated in part on other grounds, 510 F.2d 363 (5th Cir.1975) 25 (en banc) (allowing petitioner to amend petition to name proper respondent); Ashley v. State of 26 Washington, 394 F.2d 125 (9th Cir. 1968) (same). 27 In the interests of judicial economy, Petitioner need not file an amended petition. Instead, 28 Petitioner can satisfy this deficiency in his petition by filing a motion entitled "Motion to Amend 2 1 the Petition to Name a Proper Respondent" wherein Petitioner may request the the name of the 2 proper respondent in this action, Tim Perez, be substituted for “the People of the State of 3 California.” 4 Accordingly, it is HEREBY ORDERED that: 5 1. Petitioner is GRANTED 30 days from the date of service of this Order to SUBMIT a Motion to Amend the Petition to Name a Proper Respondent. 6 Petitioner is forewarned that his failure to comply with this Order may result in an 7 8 Order of Dismissal or a Recommendation that the petition be dismissed pursuant to Local Rule 9 110. 10 11 12 13 IT IS SO ORDERED. Dated: February 17, 2015 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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