Sanchez v. Spearmen

Filing 9

ORDER GRANTING Petitioner Leave to File Motion to Amend to Name a Proper Respondent; Thirty-Day Deadline signed by Magistrate Judge Jennifer L. Thurston on 7/11/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 ALEJANDRO SANCHEZ,

Case No. 1:17-cv-00723-JLT-HC

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ORDER GRANTING PETITIONER LEAVE
TO FILE MOTION TO AMEND TO NAME
A PROPER RESPONDENT

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Petitioner,
v.

14 PEOPLE OF CALIFORNIA,
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[THIRTY-DAY DEADLINE]

Respondent.

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On May 15, 2017, Petitioner filed a federal petition for writ of habeas corpus. He named

18 People of California as the respondent in this matter. However, People of California is not a
19 proper respondent. Petitioner will be granted leave to amend the respondent in order to avoid
20 dismissal of the action.
DISCUSSION

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

23 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it
24 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the
25 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir.
26 1990). A petition for habeas corpus should not be dismissed without leave to amend unless it
27 appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson,
28 440 F.2d 13, 14 (9th Cir. 1971).

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In this case, Petitioner names People of California as Respondent. A petitioner seeking

2 habeas corpus relief under 28 U.S.C. § 2254 must name the state officer having custody of him
3 as the respondent to the petition. Rule 2 (a) of the Rules Governing § 2254 Cases; Ortiz4 Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21
5 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of an incarcerated petitioner
6 is the warden of the prison in which the petitioner is incarcerated because the warden has "day7 to-day control over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.
8 1992); see also Stanley, 21 F.3d at 360. However, the chief officer in charge of state penal
9 institutions is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a
10 petitioner is on probation or parole, the proper respondent is his probation or parole officer and
11 the official in charge of the parole or probation agency or state correctional agency. Id.
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Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition

13 for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326,
14 1326 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd
15 Cir. 1976). However, the Court will give Petitioner the opportunity to cure this defect by
16 amending the petition to name a proper respondent, such as the warden of his facility. See West
17 v. Louisiana, 478 F.2d 1026, 1029 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d
18 363 (5th Cir. 1975) (en banc) (allowing petitioner to amend petition to name proper respondent);
19 Ashley v. State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). In the interests of judicial
20 economy, Petitioner need not file an amended petition. Instead, Petitioner may file a motion
21 entitled "Motion to Amend the Petition to Name a Proper Respondent" wherein Petitioner may
22 name the proper respondent in this action.
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ORDER

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Accordingly, Petitioner is GRANTED thirty days from the date of service of this order in

3 which to file a motion to amend the instant petition and name a proper respondent. Failure to
4 amend the petition and state a proper respondent will result in dismissal of the petition for lack of
5 jurisdiction.
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IT IS SO ORDERED.
Dated:

July 11, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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