Weaver v. State of California

Filing 10

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/17/13 ORDERING that 9 Order is VACATED; Petitioner has 30 days from the date of this order to file an amended petition for a writ of habeas corpus curing the deficiencies identified in this order. Clerk of the Court is directed to send petitioner the courts form for application for writ of habeas corpus.(Dillon, 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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ARLEF DAI WEAVER,

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Petitioner,

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No. 2:13-cv-0856 EFB P

vs.

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STATE OF CALIFORNIA,

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Respondent.
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ORDER

Petitioner is a state prisoner proceeding without counsel seeking a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. On May 16, 2013, the undersigned directed respondent to file a

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response to the petition within 60 days. However, further review of the petition reveals that

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petitioner has failed to sign his petition. Accordingly, the petition must be dismissed with leave

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to amend and the order filed on May 16, 2013 is vacated.

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A judge “entertaining an application for a writ of habeas corpus shall forthwith award the

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writ or issue an order directing the respondent to show cause why the writ should not be granted,

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unless it appears from the application that the applicant or person detained is not entitled

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thereto.” 28 U.S.C. § 2243.

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An application for federal habeas relief must be signed under penalty of perjury, by the

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petitioner or by a person authorized to sign it for the petitioner. Rule 2(c)(5), Rules Governing
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Section § 2254 Cases. Petitioner’s application is not signed. See Dckt. No. 1. Additionally, the

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court requires all petitions for writ of habeas corpus be filed on the proper form which is

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provided by this court. L.R. 190(b); see also Rule 2(c)-(d), Rules Governing Section § 2254

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Cases.

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A petitioner seeking a writ of habeas corpus must also name as respondent the person

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having custody over him. 28 U.S.C. § 2242; Rule 2(a), Rules Governing Section 2254 Cases.

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This person ordinarily is the warden of the facility where petitioner is confined. See Stanley v.

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California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Petitioner names as respondent

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“State of California,” which is not the person having custody over him. Thus, petitioner has

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failed to name the proper respondent.

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Accordingly, it is ORDERED that:

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1. The May 16, 2013 order is vacated.

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2. Petitioner has 30 days from the date of this order to file an amended petition for a writ

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of habeas corpus curing the deficiencies identified in this order. In addition to using the proper

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form and signing the petition, petitioner must name the proper respondent. The petition must

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bear the docket number assigned to this action and be styled, “First Amended Petition.” The

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petition must also be complete in itself without reference to any prior petition.

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3. Petitioner’s failure to comply with this order may result in dismissal.

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4. The Clerk of the Court is directed to send petitioner the court’s form for application

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for writ of habeas corpus.

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DATED: May 17, 2013.

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