Pang v. People of the State of California

Filing 5

ORDER signed by Magistrate Judge Kimberly J. Mueller on 06/10/10 granting 2 Motion to Proceed IFP. Petitioner's application for writ of habeas corpus 1 is dismissed with leave to file an amended petition within 30 days from the date of this order. The clerk of the court shall send petitioner the form for habeas corpus application. (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 vs. THE PEOPLE OF THE STATE OF CALIFORNIA, Respondent. / ORDER KENNETH PANG Petitioner, No. CIV-10-431 KJM P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Ordinarily the state officer having custody is the warden of the institution where the petitioner is housed. See Allen v. State of Oregon, 153 F.3d 1046, 1050 (9th Cir.1998). Here, petitioner has named the People of the 1

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State of California as respondent in this action. That is 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. 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: June 10, 2010.

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