Atzet v. Benito

Filing 6

ORDER signed by Magistrate Judge Dale A. Drozd on 4/17/2013 ORDERING petitioner to submit, within 30 days, an affidavit to procced ifp or the appropriate filing fee; within 30 days, petitioner shall file an amended habeas petition; petitioner's failure to comply will result in the dismissal of his action; and the Clerk shall send petitioner an ifp form and a copy of the habeas petition. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID T. ATZET,

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Petitioner,

No. 2:13-cv-00709 DAD P

vs.
GERALD BENITO,
Respondent.

ORDER
/

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has not, however, filed an in forma

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pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a).

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Petitioner will be provided the opportunity to either submit the appropriate affidavit in support of

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

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In addition, the court will order petitioner to file an amended petition because he

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has failed to name a proper respondent in this federal habeas proceeding. “A petitioner for

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habeas corpus relief must name the state officer having custody of him or her as the respondent

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to the petition.” Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994); 28

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U.S.C. § 2242 (habeas petition must name “the person who has custody over [the petitioner]”);

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Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); see Rule 2(a), Rules Governing
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Section 2254 Cases in the United States District Courts. The failure to name the proper

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respondent deprives the Court of personal jurisdiction. Smith v. Idaho, 392 F.3d 350, 352-55

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(9th Cir. 2004). “[W]hen a habeas petitioner has failed to name the proper respondent pursuant

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to § 2242 [the Court] must ask sua sponte whether the respondent who is named has the power to

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order the petitioner’s release.” Id. at 355 n.3. “If not, the court may not grant effective relief,

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and thus should not hear the case unless the petition is amended to name a respondent who can

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grant the desired relief.” Id. Thus, petitioner must name the warden of the facility where he is

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incarcerated, rather than Gerald Benito who petitioner describes as “Appointed Trustee.” (Doc.

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No. 1 at 1.)

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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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2. Within thirty days from the date of this order, petitioner shall file an amended

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habeas petition that complies with the requirements of the Federal Rules of Civil Procedure; the

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amended petition must bear the docket number assigned this case and must be labeled “Amended

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Petition;” petitioner must use the form petition provided by the Clerk of the Court and answer

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each question in the form petition; petitioner shall limit the exhibits and attachments to no more

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than twenty pages;

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3. Petitioner’s failure to comply with this order will result in the dismissal of this
action; and

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4. The Clerk of the Court is directed to send petitioner a copy of the in forma

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pauperis form used by this district and a copy of the form habeas petition for a state prisoner.

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DATED: April 17, 2013.

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DAD:mp/4

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atze0709.101a

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