Concepcion v. California Department of Corrections and Rehabilitation

Filing 9

ORDER signed by Magistrate Judge Craig M. Kellison on 4/15/11 ORDERING that petitioners 1 petition for writ of habeas corpus is DISMISSED withleave to amend within 30 days of the date of this order; and Clerk of the Court is directed to send petitioner the courts form habeas corpus application.(Dillon, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

STEVEN CONCEPCION,

12

Petitioner,

13
14

No. CIV S-11-0664-GEB-CMK-P

vs.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,

15
Respondent.
16

/

17

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

18

habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s petition

19

(Doc. 1). “A petitioner for habeas corpus relief must name the state officer having custody of

20

him or her as the respondent to the petition.” Stanley v. California Supreme Court, 21 F.3d 359,

21

360 (9th Cir. 1994); see also Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996)

22

(naming the Director of Corrections rather than the prison warden is not sufficient); see also Rule

23

2(a), Federal Rules Governing Section 2254 Cases. Because petitioner has not named the

24

appropriate state officer, the petition must be dismissed with leave to amend to name the correct

25

///

26

///
1

1

respondent.1 See Stanley, 21 F.3d at 360. Petitioner is warned that failure to comply with this

2

order may result in the dismissal of this action. See Local Rule 110.

3

Accordingly, IT IS HEREBY ORDERED that:

4

1.

5

Petitioner’s petition for writ of habeas corpus (Doc. 1) is dismissed with

leave to amend;

6

2.

Petitioner shall file an amended petition on the form employed by this

7

court, and which names the proper respondent and states all claims and requests for relief, within

8

30 days of the date of this order; and

9
10

3.

The Clerk of the Court is directed to send petitioner the court’s form

habeas corpus application.

11
12

DATED: April 15, 2011

13

______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26

1

The court is in receipt of petitioner’s letter wherein he set forth his belief that the
State of California may be the appropriate respondent. However, neither the State of California
nor the California Department of Corrections and Rehabilitation is the proper respondent.
Rather, the proper respondent is the state officer who has custody of petitioner, such as the
warden of the institution wherein he is being housed.
2