Leslie v. State of California Department of Corrections and Rehabilitation et al

Filing 3

ORDER signed by Magistrate Judge Craig M. Kellison on 2/23/06. 1 Petition for Writ of Habeas Corpus is DISMISSED with leave to file Amended Petition w/in 30 days from date of Order. Clerk directed to send petitioner copies of Applications for Writ of Habeas Corpus and to Proceed IFP.(Marciel, M)

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(HC) Leslie v. State of California Department of Corrections and Rehabilitation et al Doc. 3 Case 2:06-cv-00302-GEB-CMK Document 3 Filed 02/24/2006 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Respondents. / Petitioner, a state prisoner proceeding pro se, has filed a "Petition for Writ of Mandamus/Prohibition, which the court construes as an application for a writ of habeas corpus pursuant to 28 U.S.C. 2254. Examination of plaintiff's filing revels several deficiencies. First, petitioner has not filed an in forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. 1914(a); 1915(a). Petitioner will be provided the opportunity to either submit the appropriate affidavit in support of a request to proceed in forma pauperis or submit the appropriate filing fee. Next, "[a] petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition." Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (citing Rule 2(a), 28 U.S.C. foll. 2254). Petitioner has named The State of California Department of Corrections as respondents and the People of the State of California as the real party in interest. This entity and these individuals are not the proper respondent in this action. Accordingly, the instant petition must be dismissed with leave to amend. See Stanley, 21 F.3d at 360. Dockets.Justia.com IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA FRANK D. LESLIE, Petitioner, No. CIV S-06-0302 GEB CMK P ORDER Case 2:06-cv-00302-GEB-CMK Document 3 Filed 02/24/2006 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Finally, the court requires all petitions for writ of habeas corpus be filed on the proper form which is provided by this court. Moreover, the court may limit its review of the petition for relief to the information on the form only and need not consider any memoranda or attachments to the petition. See Rule 2(c), Rules Governing 2254 Cases. Petitioner is hereby notified that in order for this court to review his application, he must refile his petition on the proper form. Furthermore, although petitioner may submit a separate memorandum to support his petition for relief, the court's application form must contain all relevant claims, and must provide the court with all necessary information. In accordance with the above, IT IS HEREBY ORDERED that: 1. Petitioner's application for writ of habeas corpus is dismissed with leave to file an amended petition within thirty days from the date of this order; 2. Any amended petition must be filed on the form employed by this court, must name the proper respondent, and must state all claims and prayers for relief on the form. It must bear the case number assigned to this action and must bear the title "Amended Petition"; 3. Petitioner shall submit, with any amended petition, an affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee; 4. The Clerk of the Court is directed to send petitioner a copy of the form for habeas corpus application used by this district and a copy of the in forma pauperis form used by this district. DATED: February 23, 2006. ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 2

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