Splawn v. Cate

Filing 6

[VACATED PURSUANT TO 7 ORDER] ORDER signed by Magistrate Judge Edmund F. Brennan on 1/20/10 ORDERING that the 1/14/10 petition is DISMISSED with leave to file an amended petition naming the proper respondent within 30 days of the date of this order. Clerk of the Court is directed to send to petitioner the form Petition for a Writ of Habeas Corpus used in this court.(Dillon, M) Modified on 1/21/2010 (Yin, K).

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. MATTHEW CATE, Respondent. / Petitioner is a state prisoner with counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. He has paid the $5 filing fee. See 28 U.S.C. § 1914(a). 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 Secretary of the California Department of Corrections and Rehabilitation, who does not have custody over petitioner. Petitioner has not named the proper respondent. Accordingly, it is ORDERED that the January 14, 2010 petition is dismissed with leave to file an amended petition naming the proper respondent within 30 days of the date of this order. ////
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA STEVEN MICHAEL SPLAWN, Petitioner, No. CIV S-10-0121 EFB P

ORDER

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Petitioner's failure to file an amended petition will result in a recommendation that this action be dismissed without prejudice. The Clerk of the Court is directed to send to petitioner the form Petition for a Writ of Habeas Corpus used in this court. Dated: January 20, 2010.

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