Lewis v. People of The State of California

Filing 8

ORDER signed by Magistrate Judge John F. Moulds on 4/22/10 ORDERING that 7 Motion to Proceed IFP is GRANTED; 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 15 16 17 18 19 20 21 22 23 24 25 26 vs. PEOPLE, et al., Respondents. / Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a). "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), and the court is required to consider sua sponte whether the named respondents have the power to provide the relief sought in a habeas corpus action. See Smith v. Idaho, 392 F.3d 350, 355 n.3 (9th Cir. 2004). Petitioner has named "People" and the Attorney 1 ORDER JIMMY LEE LEWIS, Petitioner, No. 2:10-cv-0422-JFM (HC) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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General of the States of California as respondents in this action. These are not the proper respondents in this action. Instead, petitioner must name as respondent the warden of the prison where he is incarcerated. Accordingly, the instant petition must be dismissed with leave to amend. See Stanley, 21 F.3d at 360. In accordance with the above, IT IS HEREBY ORDERED that: 1. Petitioner's request to proceed in forma pauperis is granted; 2. 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; 3. 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 4. The Clerk of the Court is directed to send petitioner the form for habeas corpus application. DATED: April 22, 2010.

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