(HC)Ramirez v. The People of the State of California

Filing 7

ORDER GRANTING Leave to file First Amended Petition 6 within 30-Days signed by Magistrate Judge Helena M. Barch-Kuchta on 7/25/2022. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ISAIAH B. RAMIREZ,

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Petitioner,

No. 1:22-cv-00295-HBK
ORDER GRANTING LEAVE TO FILE A
FIRST AMENDED PETITION

v.
(Doc. No. 6)
PEOPLE OF THE STATE OF
CALIFORNIA,

THIRTY DAY DEADLINE

Respondent.

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On February 24, 2022, Petitioner initiated this action by filing a petition for writ of habeas

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corpus under 28 U.S.C. § 2254. (Doc. No. 1). Before the Petition in this case was screened,

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Petitioner initiated a separate habeas action by filing another petition for writ of habeas corpus

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under 28 U.S.C. § 2254 on May 10, 2022 in Case No. 1:22-cv-00604-HBK. In accordance with

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Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008), the Court construed the later-filed petition

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in Case No. 1:22-cv-00604-HBK as a motion to amend the Petition filed in this case, and ordered

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the later-filed matter closed. (Doc. Nos. 5-6). A preliminary screening of the proposed amended

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Petition reveals that it fails to present cognizable grounds for relief or facts in support, and fails to

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name a proper respondent. Therefore, the Court will grant Petitioner’s construed Woods motion

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and afford Petitioner an opportunity to file an first amended petition before recommending

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dismissal of this action.
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DISCUSSION

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A. Preliminary Review of Petition

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Rule 4 of the Rules Governing § 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 dismiss a petition "[i]f it

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

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

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The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ

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of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to

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dismiss, or after an answer to the petition has been filed. A petition for habeas corpus should not

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be dismissed without leave to amend unless it appears that no tenable claim for relief can be

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pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

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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

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

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that custody . . ..” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).

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In addition to the above, Rule 2(c) of the Rules Governing Section 2254 Cases requires
that the petition:

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(1) Specify all the grounds for relief available to the petitioner;

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(2) State the facts supporting each ground;

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(3) State the relief requested;

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(4) Be printed, typewritten, or legibly handwritten; and

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(5) 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.
Further, 28 U.S.C. § 2242 requires a petitioner to allege the facts concerning the
petitioner’s commitment or detention.
The Petition is 74 pages long and to extent discernable, asserts claims including, but not
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limited to, violation of equal protection and due process rights, “interference with commerce by

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threats or violence,” and violations of the Americans with Disabilities Act. (See Doc. No. 6). It

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is unclear whether Petitioner is making any allegations that he is in custody in violation of the

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Constitution or laws or treaties of the United States. And the Petitioner fails to specify ground(s)

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for relief or any facts supporting his ground(s). Therefore, the petition fails to state a cognizable

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federal habeas claim and is subject to dismissal. Petitioner will be granted an opportunity to file a

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First Amended Petition curing these deficiencies if he is able. Petitioner is advised that he should

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

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

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C. Failure to Name a Proper Respondent

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Petitioner also identifies “The People of California” as the Respondent. A petitioner

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seeking habeas corpus relief must name the officer having custody of him as the respondent to the

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petition. Rule 2(a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891,

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894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

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Normally, the person having custody of an incarcerated petitioner is the warden of the prison in

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which the petitioner is incarcerated because the warden has "day-to-day control over" the

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petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also Stanley, 21

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F.3d at 360. However, the chief officer in charge of penal institutions is also appropriate. Ortiz,

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81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or parole, the proper

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

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agency or correctional agency. Id.

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

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

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1326 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd

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Cir. 1976). However, the Court will give Petitioner the opportunity to cure this defect by

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

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(5th Cir. 1975) (en banc) (allowing petitioner to amend petition to name proper respondent);
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Ashley v. State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). Petitioner may correct this

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deficiency in his First Amended Petition.

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ORDER

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Accordingly, IT IS ORDERED:
1. Petitioner construed motion to amend Petition (Doc. No. 6) is GRANTED. Petitioner

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shall file a free-standing First Amended Petition within thirty days (30) from the date of

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service of this Order.

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2. Petitioner may also file a Notice of Voluntary Dismissal if he does not believe he can cure

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the deficiencies identified above.
3. If Petitioner fails to timely file a First Amended Petition the undersigned will recommend

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the Court dismiss the petition for the reasons set forth here and/or for Petitioner’s failure

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to prosecute this action.

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Dated:

July 25, 2022
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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