Orduno v. On Habeas Corpus

Filing 4

ORDER Granting Petitioner Leave to File a Motion to Amend the Petition and Name a Proper Respondent, signed by Magistrate Judge Erica P. Grosjean on 10/17/16. Thirty-Day Deadline. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WALTER ORDUNO, Petitioner, 12 13 14 15 Case No. 1:16-cv-01180-EPG-HC ORDER GRANTING PETITIONER LEAVE TO FILE A MOTION TO AMEND THE PETITION AND NAME A PROPER RESPONDENT v. ON HABEAS CORPUS, Respondent. 16 17 Petitioner a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 In this matter, Petitioner fails to name any Respondent. A petitioner seeking habeas 20 corpus relief under 28 U.S.C. § 2254 must name the state officer having custody of him as the 21 respondent to the petition. Rule 2(a), Rules Governing Section 2254 Cases; Ortiz-Sandoval v. 22 Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 23 (9th Cir. 1994). Normally, the person having custody of an incarcerated petitioner is the warden 24 of the prison in which the petitioner is incarcerated. Smith v. Idaho, 392 F.3d 350, 355 (9th Cir. 25 2004); Stanley, 21 F.3d at 360. However, the chief officer in charge of state penal institutions is 26 also appropriate. Ortiz-Sandoval, 81 F.3d at 894; Stanley, 21 F.3d at 360. 27 A petitioner’s failure to name a proper respondent requires dismissal of his habeas 28 petition for lack of personal jurisdiction. Stanley v. California Supreme Court, 21 F.3d 359, 360 1 1 (9th Cir. 1994). However, the Court will give Petitioner the opportunity to cure this defect by 2 amending the petition to name a proper respondent, such as the warden of his facility or the chief 3 officer in charge of state penal institutions. See Dubrin v. California, 720 F.3d 1095, 1100 (9th 4 Cir. 2013) (petitioner should be granted leave to amend petition to name proper respondent). In 5 the interests of judicial economy, Petitioner need not file an amended petition. Instead, Petitioner 6 may file a motion entitled “Motion to Amend the Petition to Name a Proper Respondent” 7 wherein Petitioner may name the proper respondent in this action. 8 Accordingly, IT IS HEREBY ORDERED that Petitioner is GRANTED THIRTY (30) 9 days from the date of service of this order in which to file a motion to amend the petition to 10 name a proper respondent. 11 Petitioner is forewarned that failure to follow this order may result in dismissal of the 12 petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s failure to prosecute or 13 to comply with a court order may result in a dismissal of the action). 14 15 16 IT IS SO ORDERED. Dated: October 17, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2

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