Plunkett v. Attorney General of the State of California

Filing 5

ORDER signed by Magistrate Judge Dale A. Drozd on 1/14/10 ORDERING that petitioners application for writ of habeas corpus is DISMISSED with leave to file an amended petition within 30 days from the date of this order; Clerk of the Court is directed to send petitioner the form for habeas corpus application.(Dillon, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 Respondent. 15 16 17 18 19 20 21 22 23 24 25 26 / Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with the court's December 23, 2009 order, petitioner has paid the filing fee. "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 Attorney General of the State of California as the respondent in this action. The Attorney General, however, is not the proper respondent. Accordingly, the instant petition must be dismissed with leave to amend. See Stanley, 21 F.3d at 360. Petitioner is advised that the proper respondent in the usual habeas action is the warden of the institution where the petitioner is currently incarcerated. See Stanley, 21 F.3d at 360. 1 ORDER vs. ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA MICHAEL PLUNKETT, Petitioner, No. CIV S-09-3460 DAD P

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DAD:9 plun3460.122

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"; and 3. The Clerk of the Court is directed to send petitioner the form for habeas corpus application. DATED: January 14, 2010.

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