Bristol v. California Division of Parole

Filing 6

ORDER Granting Petitioner Leave to File a Motion to Amend the Petition and Name a Proper Respondent, signed by Magistrate Judge Stanley A. Boone on 6/23/15. Thirty-Day Deadline. (Gonzalez, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

BRANDON MICHAEL BRISTOL,

12

Petitioner,

13
14

v.

Case No. 1:15-cv-00846-SAB (HC)
ORDER GRANTING PETITIONER LEAVE TO
FILE A MOTION TO AMEND THE PETITION
AND NAME A PROPER RESPONDENT

CALIFORNIA DIVISION OF PAROLE,

15

Respondent.

16
17

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

18

pursuant to 28 U.S.C. § 2254. On May 29, 2015, Petitioner filed the instant petition challenging

19

his 2011 conviction in Kern County Superior Court for attempting to commit a lewd or lascivious

20

act upon a child under the age of 14 and annoying or molesting a child under the age of 18.

21

Petitioner argues that the trial court erroneously admitted evidence of his prior sexual offense. He

22

has consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF

23

No. 5).

24

I.

25

LEAVE TO FILE A MOTION TO AMEND

26
27

Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary

28

review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it
1

1

plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the

2

Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

3

A petition for habeas corpus should not be dismissed without leave to amend unless it appears

4

that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440

5

F.2d 13, 14 (9th Cir. 1971).

6

In this case, Petitioner names “California Division of Parole” as the Respondent. It is

7

insufficient to name “California Division of Parole” as the Respondent. A petitioner seeking

8

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

9

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

10

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

11

(9th Cir. 1994). Normally, the person having custody of an incarcerated petitioner is the warden

12

of the prison in which the petitioner is incarcerated because the warden has "day-to-day control

13

over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also,

14

Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). However, the chief officer

15

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

16

21 F.3d at 360.

17

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

18

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

19

1326 (9th Cir. 1970). However, the Court will give Petitioner the opportunity to cure this defect

20

by amending the petition to name a proper respondent, such as the name of the warden of his

21

facility or the chief officer in charge of state penal institutions.

22

Washington, 394 F.2d 125 (9th Cir. 1968) (allowing petitioner to amend petition to name proper

23

respondent). In the interests of judicial economy, Petitioner need not file an amended petition.

24

Instead, Petitioner may file a motion entitled "Motion to Amend the Petition to Name a Proper

25

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

26

///

27

///

28

II.
2

See Ashley v. State of

1

ORDER

2
3
4
5

Accordingly, IT IS HEREBY ORDERED that Petitioner is GRANTED thirty (30) days
from the date of service of this order in which to file a motion to amend the instant petition and
name a proper respondent. Failure to amend the petition and name a proper respondent will result
in the petition being dismissed for lack of jurisdiction.

6
7
8

IT IS SO ORDERED.
Dated:

June 23, 2015
UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3