James v. Superior Court of California

Filing 2

ORDER TO SHOW CAUSE. Signed by Judge ARMSTRONG on 5/21/13. (lrc, COURT STAFF) (Filed on 5/23/2013)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 13 14 15 16 No. C 13-00885 SBA (PR) MICHAEL JAMES, ORDER TO SHOW CAUSE Petitioner, v. JEFFREY A. BEARD, Secretary of California Department of Corrections and Rehabilitation (CDCR), Respondent. / 17 18 19 20 Petitioner, a state parolee proceeding pro se, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the $5.00 filing fee. The rules governing relief under 28 U.S.C. § 2254 require a person in custody pursuant to the 21 judgment of a state court to name the "'state officer having custody'" of him as the respondent. 22 Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (quoting Rule 2(a) of the Rules 23 Governing Habeas Corpus Cases Under Section 2254). This person typically is the warden of the 24 facility in which the petitioner is incarcerated. See Stanley v. California Supreme Court, 21 F.3d 25 359, 360 (9th Cir. 1994). Failure to name the petitioner's custodian as a respondent deprives federal 26 courts of personal jurisdiction, see id., but the allegations of the petition are to be liberally construed 27 when considering whether the proper respondent has been named, see Belgarde v. Montana, 123 28 F.3d 1210, 1214 (9th Cir. 1997). The "'state officer having custody'" also may include "'the chief 1 officer in charge of state penal institutions.'" Ortiz-Sandoval, 81 F.3d at 894 (quoting Rule 2(a) 2 advisory committee's note). 3 Here, Petitioner has named as Respondent the "Superior Court of California." However, the 4 proper respondent should be "'the chief officer in charge of state penal institutions,'" who has 5 "custody" of Petitioner, a parolee. See Rule 2(a) advisory committee's note; Fed. R. Civ. P. 19(a). 6 Accordingly, Secretary of CDCR Jeffrey A. Beard is named as the respondent in this action in place 7 of “Superior Court of California.” See Ortiz-Sandoval, 81 F.3d at 894. 8 9 United States District Court For the Northern District of California 10 Further, it does not appear from the face of the petition that it is without merit. Good cause appearing, the Court hereby issues the following orders: 1. The Clerk of the Court shall serve a copy of this Order and the petition and all 11 attachments thereto upon Respondent and Respondent's attorney, the Attorney General of the State 12 of California. The Clerk shall also serve a copy of this Order on Petitioner at his current address. 13 2. Respondent shall file with this Court and serve upon Petitioner, within one-hundred 14 and twenty (120) days of the issuance of this Order, an Answer conforming in all respects to Rule 5 15 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not 16 be issued. Respondent shall file with the Answer a copy of all portions of the relevant state records 17 that have been transcribed previously and that are relevant to a determination of the issues presented 18 by the petition. 19 3. If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with 20 the Court and serving it on Respondent within sixty (60) days of his receipt of the Answer. Should 21 Petitioner fail to do so, the petition will be deemed submitted and ready for decision sixty (60) days 22 after the date Petitioner is served with Respondent's Answer. 23 4. Respondent may file with this Court and serve upon Petitioner, within sixty (60) days 24 of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an Answer, as set 25 forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If 26 Respondent files such a motion, Petitioner shall file with the Court and serve on Respondent an 27 opposition or statement of non-opposition to the motion within sixty (60) days of receipt of the 28 2 1 motion, and Respondent shall file with the Court and serve on Petitioner a reply within fourteen 2 (14) days of receipt of any opposition. 3 5. It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court 4 and Respondent informed of any change of address and must comply with the Court's orders in a 5 timely fashion. Petitioner must also serve on Respondent's counsel all communications with the 6 Court by mailing a true copy of the document to Respondent's counsel. 7 6. Extensions of time are not favored, though reasonable extensions will be granted. 8 Any motion for an extension of time must be filed no later than fourteen (14) days prior to the 9 deadline sought to be extended. United States District Court For the Northern District of California 10 11 12 13 7. Secretary of CDCR Jeffrey A. Beard is substituted as Respondent pursuant Rule 2(a) of the Rules Governing Habeas Corpus Cases Under Section 2254. IT IS SO ORDERED. DATED: 5/21/13 SAUNDRA BROWN ARMSTRONG United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\SBA\HC.13\James0885.OSC.wpd 3 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 6 MICHAEL JAMES, 7 8 9 United States District Court For the Northern District of California 10 Case Number: CV13-00885 SBA Plaintiff, CERTIFICATE OF SERVICE v. SUPERIOR COURT OF CALIFORNIA et al, Defendant. / 11 12 13 14 15 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on May 23, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 19 Michael James AD2470 / AQU348 8117 Sunkist Drive Oakland, CA 94605 Dated: May 23, 2013 Richard W. Wieking, Clerk By: Lisa Clark, Deputy Clerk 20 21 22 23 24 25 26 27 28 G:\PRO-SE\SBA\HC.13\James0885.OSC.wpd 4

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