Winfield v. Virga

Filing 3

ORDER signed by Magistrate Judge Kendall J. Newman on 04/19/12 ordering petitioner shall submit within 30 days from the date of this order, an affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee. The clerk of the court shall send petitioner a copy of the in forma pauperis form and the petition for writ of habeas corpus form used by this district. The correct respondent, Tim V. Virga is substituted as the correct respondent. The clerk of the court shall interlineate the name "Tim V. Virga, Warden" as the respondent on the petition and in the court's records. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL WINFIELD,
Petitioner,

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vs.
TIM V. VIRGA, Warden,1
Respondent.

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ORDER
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Petitioner, a state prisoner proceeding without counsel, filed an application for a

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No. 2:12-cv-1006 KJN P

writ of habeas corpus pursuant to 28 U.S.C. § 2254.2 Petitioner has not, however, filed an in

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Petitioner improperly named Richard Parks as respondent. “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. Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Accordingly, the court now
substitutes in the correct respondent, Tim V. Virga, the Warden of the California State Prison,
Sacramento, where petitioner is presently incarcerated. The Clerk of Court is directed to interlineate
the name Tim V. Virga, Warden, as the respondent on the petition and in the court’s records.
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The instant petition is deemed filed on June 30, 2010, the date petitioner presented the
petition to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro
se prisoner filing is dated from the date prisoner delivers it to prison authorities). Initial review of
the petition reflects that petitioner has not exhausted his state court remedies. The exhaustion of
state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28
U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent’s
counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may not be implied or inferred. A
petitioner satisfies the exhaustion requirement by providing the highest state court with a full and
fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor,
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forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a);

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1915(a). Therefore, petitioner will be provided the opportunity to either submit the appropriate

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affidavit in support of a request to proceed in forma pauperis or submit the appropriate filing fee.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner shall submit, within thirty days from the date of this order, an

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affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee;

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petitioner's failure to comply with this order will result in the dismissal of this action; and
2. The Clerk of the Court is directed to send petitioner a copy of the in forma

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pauperis form and the petition for writ of habeas corpus form used by this district.

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3. The correct respondent, Tim V. Virga, is substituted as the correct respondent.

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The Clerk of the Court shall interlineate the name “Tim V. Virga, Warden” as the respondent on

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the petition, and in the court’s records.

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DATED: April 19, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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winf1006.101a

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404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S.
1021 (1986).
If petitioner has exhausted his state court remedies during the delay between the date he
presented the instant petition to prison officials for mailing, and its receipt by this court, petitioner
should also submit an amended petition setting forth this information at the same time he complies
with the instant order. The Court Clerk is directed to send petitioner the form for filing a habeas
corpus petition.
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