(HC) Howard v. Superior Court Metropolitan Division of County of Kern

Filing 6

ORDER DISMISSING Petition with Leave to File a First Amended Petition; the Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE for failure to name a proper respondent, signed by Magistrate Judge Jennifer L. Thurston on 7/13/2020. First Amended Petition due 30-Day Deadline (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAMONT J. HOWARD,

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Petitioner,
v.

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SUPERIOR COURT METROPOLITAN
DIVISION OF COUNTY OF KERN,
Respondent.

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Case No.: 1:20-cv-00933-JLT (HC)
ORDER DISMISSING PETITION WITH LEAVE
TO FILE A FIRST AMENDED PETITION
[THIRTY-DAY DEADLINE]

Petitioner filed a Petition for Writ of Habeas Corpus on June 5, 2020. (Doc. 1.) A preliminary

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screening of the petition reveals that the petition fails to name the proper respondent. Therefore, the

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Court will DISMISS the 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 Name a Proper Respondent

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A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer

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having custody of him as the respondent to the petition. Rule 2(a) of the Rules Governing § 2254

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Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme

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

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

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“day-to-day control over” the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.

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1992); see also Stanley, 21 F.3d at 360. However, the chief officer in charge of state penal institutions

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is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation

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or parole, the proper respondent is his probation or parole officer and the official in charge of the

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parole or probation agency or state correctional agency. Id.

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Petitioner names the “Superior Court Metropolitan Division of County of Kern” as the

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Respondent. However, the Superior Court Metropolitan Division of County of Kern is not the warden

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or chief officer of the institution where Petitioner is confined, and, thus, does not have day-to-day

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control over Petitioner. Petitioner is presently confined at the California Correctional Institution in

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Tehachapi, California. The current director or warden of that facility is the person Petitioner should

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name as Respondent.

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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 of his facility. See West v. Louisiana, 478 F.2d 1026,

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1029 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d 363 (5th Cir. 1975) (en banc)

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(allowing petitioner to amend petition to name proper respondent); Ashley v. State of Washington, 394

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F.2d 125 (9th Cir. 1968) (same). In any amended petition, Petitioner must name a proper respondent.

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Petitioner will be granted an opportunity to file a First Amended Petition to cure this deficiency.

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Petitioner is advised that he should entitle his pleading, “First Amended Petition,” and he should

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reference the instant case number. Failure to comply with this order will result in dismissal of the
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action.

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II.

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 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:

July 13, 2020

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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