Sotomayor-Rodriguez v. On Habeas Corpus

Filing 3

ORDER dismissing Petition with leave to file a First Amended Petition signed by Magistrate Judge Jennifer L. Thurston on 1/30/2018. First Amended Petition due within 30-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EMILIO SOTOMAYOR-RODRIGUEZ,

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Petitioner,

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v.

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ON HABEAS CORPUS,

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Respondent.

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Case No.: 1:17-cv-01721-JLT (HC)
ORDER DISMISSING PETITION WITH LEAVE
TO FILE A FIRST AMENDED PETITION
[THIRTY DAY DEADLINE]

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Petitioner filed the instant federal habeas petition in this Court on December 21, 2017. A

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preliminary screening of the petition reveals that it fails to present any cognizable grounds for relief or

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any facts in support, and fails to name a proper respondent. Therefore, the Court will DISMISS the

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petition with leave to file an amended petition.

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I.

DISCUSSION

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A. Preliminary Review of Petition

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

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

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plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in

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the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory

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Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus,
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either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an

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answer to the petition has been filed.

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B. Failure to State a Cognizable Federal Claim

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The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2241(c)(3)

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provides that the writ of habeas corpus shall not extend to a prisoner unless “[h]e is in custody in

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violation of the Constitution or laws or treaties of the United States.” The Supreme Court has held

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that “the essence of habeas corpus is an attack by a person in custody upon the legality of that custody

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. . .” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
In addition to the above, Rule 2(c) of the Rules Governing Section 2254 Cases1 requires that

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the petition:
(1)
(2)
(3)
(4)
(5)

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Specify all the grounds for relief available to the petitioner;
State the facts supporting each ground;
State the relief requested;
Be printed, typewritten, or legibly handwritten; and
Be signed under penalty of perjury by the petitioner or by a person authorized to sign it for
the petitioner under 28 U.S.C. § 2242.

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Further, 28 U.S.C. § 2242 requires a petitioner to allege the facts concerning the petitioner’s

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commitment or detention.
Petitioner has failed to comply with the aforementioned statutes and rules. He does not allege

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he is in custody in violation of the Constitution or laws or treaties of the United States. He fails to

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specify any grounds for relief or the facts supporting these claims. Therefore, Petitioner fails to state a

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cognizable federal habeas claim and the petition must be dismissed. Petitioner will be granted an

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opportunity to file a First Amended Petition curing these deficiencies. Petitioner is advised that he

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should caption his pleading, “First Amended Petition,” and he should reference the instant case

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number. Failure to comply with this order will result in recommendation of dismissal of the action.

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C. Failure to Name a Proper Respondent

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Petitioner does not name a respondent. A petitioner seeking habeas corpus relief must name

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the officer having custody of him as the respondent to the petition. 28 U.S.C. § 2242; Rule 2 (a) of the

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The Rules Governing Section 2254 Cases in the United States Courts (Habeas Rules) are appropriately applied to
proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas Rule 1(b).

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Rules Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v.

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California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of

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an incarcerated petitioner is the warden of the prison in which the petitioner is incarcerated because

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the warden has "day-to-day control over" the petitioner. Brittingham v. United States, 982 F.2d 378,

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379 (9th Cir. 1992); see also Stanley, 21 F.3d at 360. However, the chief officer in charge of state

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penal institutions is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a

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petitioner is on probation or parole, the proper respondent is his probation or parole officer and the

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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 for

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

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(9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd Cir. 1976).

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However, the Court will give Petitioner the opportunity to cure this defect by amending the petition to

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name a proper respondent, such as the warden or officer in charge of his facility. See West v.

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Louisiana, 478 F.2d 1026, 1029 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d 363 (5th

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Cir. 1975) (en banc) (allowing petitioner to amend petition to name proper respondent); Ashley v.

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State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). Petitioner may correct this deficiency in

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his First Amended Petition.

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III.

ORDER

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Accordingly, the Court ORDERS:

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1) The Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE for
failure to state a claim and failure to name a proper respondent; and

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2) Petitioner is GRANTED thirty days from the date of service of this order to file a First
Amended Petition.

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IT IS SO ORDERED.
Dated:

January 30, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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