Walton v. Sacramento District Court

Filing 8

ORDER signed by Magistrate Judge Edmund F. Brennan on 12/21/09 ordering the 10/16/09 findings and recommendations 6 are vacated. Petitioner's 11/02/09 motion to proceed in forma pauperis 7 is denied as unnecessary. The 05/19/09 petition 1 is dismissed with leave to file an amended petition naming the proper respondent within 30 days of the date of this order. The clerk of the court shall send petitioner the court's form for application for writ of habeas corpus. (Plummer, M)

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 The court will therefore vacate its October 16, 2009 findings and recommendations, which recommended that this action be dismissed on the ground that petitioner had not paid the filing fee or filed a completed in forma pauperis application. The court will also deny petitioner's motion to proceed in forma pauperis as unnecessary.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA DAVID M. WALTON, Petitioner, vs. SACRAMENTO DISTRICT COURT, Respondent. / Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus. See 28 U.S.C. § 2254. On November 2, 2009, petitioner paid the filing fee.1 The court requires all petitions for writ of habeas corpus be filed on the proper form which is provided by this court. L.R. 190(b); see also Rule 2(c)-(d), Rules Governing Section 2254 Cases. Petitioner is hereby notified that in order for this court to review his May 19, 2009 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. See ORDER No. CIV S-09-1384 LKK EFB P

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L.R. 190(e); Rule 2(c), Rules Governing Section 2254 Cases. Additionally, a petitioner seeking a writ of habeas corpus must name as respondent the person having custody over him. 28 U.S.C. § 2242; Rule 2(a), Rules Governing Section 2254 Cases. This person ordinarily is the warden of the facility where petitioner is confined. See Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Petitioner names as respondent the "Sacramento District Court," which does not have custody over petitioner. Petitioner has not named the proper respondent. Accordingly, it is ORDERED that: 1. The October 16, 2009 findings and recommendations are vacated; 2. Petitioner's November 2, 2009 motion to proceed in forma pauperis is denied as unnecessary; 3. The May 19, 2009 petition is dismissed with leave to file an amended petition naming the proper respondent within 30 days of the date of this order; 4. Any amended petition must be filed on the form employed by this court 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"; 5. Petitioner is cautioned that failure to file an amended petition pursuant to this order may result in a recommendation that this action be dismissed; and 6. The Clerk of the Court is directed to send petitioner the court's form for application for writ of habeas corpus. Dated: December 21, 2009.

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