Arguilez v. The People of California

Filing 5

ORDER DISMISSING CASE without prejudice and with leave to amend. Petitioner mustfile a Second Amended Petition no later than June 29, 2010 in conformance with this Order. Signed by Judge William Q. Hayes on 5/11/10.(All non-registered users served via U.S. Mail Service)(blank Second Amended Petition form sent to Petitioner)(lao) (jcj).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

DOREL ARGUILEZ, Petitioner, v. THOMAS CARPENTER, Respondent.

Civil No.

10cv0291 WQH (PCL)

ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND

On February 4, 2010, Petitioner, a state prisoner proceeding pro se, submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, and paid the filing fee. In its March 4, 2010 Order, the Court dismissed this case without prejudice because Petitioner failed to name a proper respondent. Petitioner was instructed that to have this case reopened he had to file a First Amended Petition no later than April 26, 2010. On April 23, 2010 Petitioner filed a First Amended Petition pursuant to this Court's Order. Review of the First Amended Petition, however, reveals that Petitioner has again failed to name a proper respondent. On federal habeas, a state prisoner must name the state officer having custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). "The `state officer having custody' may be

`either the warden of the institution in which the petitioner is incarcerated . . . or the chief officer in charge of state penal institutions.'" Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory committee's note).

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Here, Petitioner has incorrectly named "Thomas Carpenter," as Respondent. Petitioner is confined at Pleasant Valley State Prison. In order for this Court to entertain the Petition filed in this action, Petitioner must name the warden in charge of the state correctional facility in which Petitioner is presently confined or the Secretary of the California Department of Corrections and Rehabilitation. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam) (emphasis added). Accordingly, the Court DISMISSES the Fist Amended Petition without prejudice due to Petitioner's failure to name a proper respondent. To have this case reopened, Petitioner must file a Second Amended Petition no later than June 29, 2010 in conformance with this Order. For Petitioner's convenience, the Clerk of Court shall attach to this Order a blank Second Amended Petition form. IT IS SO ORDERED. DATED: May 11, 2010 WILLIAM Q. HAYES United States District Judge

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