Taylor v. McDonald et al

Filing 27

ORDER Sua Sponte Substituting Respondents. The Court Orders "Martin Hoshino, Acting Secretary" as Respondent in place of "Mike McDonald" and "Kamala Harris." Signed by Magistrate Judge Barbara Lynn Major on 12/28/2012.(All non-registered users served via U.S. Mail Service)(rlu)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ISAIAH RASHAD TAYLOR, 12 13 14 Civil No. 11cv1165-BTM (BLM) Petitioner, vs. ORDER SUA SPONTE SUBSTITUTING RESPONDENTS MARTIN HOSHINO, Acting Secretary, 15 Respondent. 16 17 On May 26, 2011, Petitioner, a state prisoner proceeding pro se, filed a Petition for a Writ 18 of Habeas Corpus pursuant to 28 U.S.C. § 2254, naming as Respondents Mike McDonald, the 19 Warden of Calipatria State Prison, where Petitioner was confined, and Kamala Harris, the 20 California Attorney General. Petitioner has now submitted a Notice of change of address 21 indicating that he has been transferred to Centinela State Prison. (ECF No. 26.) Because 22 Petitioner’s custodian has changed, the Warden of the institution where Petitioner was 23 previously housed is no longer a proper Respondent. 24 A writ of habeas corpus acts upon the custodian of the state prisoner. See 28 U.S.C. 25 § 2242; Rule 2(a), 28 U.S.C. foll. § 2254. In order to conform with the requirements of 26 Rule 2(a) of the Rules Governing § 2254 Cases and to avoid changing the Respondent again if 27 Petitioner is transferred to another prison or paroled, the Court hereby sua sponte ORDERS the 28 substitution of Martin Hoshino, Acting Secretary of the California Department of Corrections I:\Chambers Major\CASES\Taylor v. McDonald et al (habe)\11cv1165-Substitute.wpd, 122812 -1- 11cv1165 1 and Rehabilitation, as Respondent in place of Mike McDonald. See Ortiz-Sandoval v. Gomez, 2 81 F.3d 891, 894 (9th Cir. 1996) (stating that the respondent in § 2254 proceedings may be the 3 chief officer in charge of state penal institutions). 4 In addition, the Attorney General of the State of California is not a proper respondent in 5 this action. As set forth above, Rule 2 of the Rules following § 2254 provides that the state 6 officer having custody of the petitioner shall be named as respondent. Rule 2(a), 28 U.S.C. foll. 7 § 2254. However, “[i]f the petitioner is not yet in custody – but may be subject to future custody 8 – under the state-court judgment being contested, the petition must name as respondents both 9 the officer who has current custody and the attorney general of the state where the judgement 10 was entered.” Rule 2 (b), 28 U.S.C. foll. § 2254. Here, there is no basis for Petitioner to have 11 named the Attorney General as a respondent in this action. The Clerk of the Court shall modify the docket to reflect “Martin Hoshino, Acting 12 13 Secretary” as Respondent in place of “Mike McDonald” and “Kamala Harris.” IT IS SO ORDERED. 14 15 16 DATED: December 28, 2012 17 18 BARBARA L. MAJOR United States Magistrate Judge 19 20 21 22 CC: ALL PARTIES 23 24 25 26 27 28 I:\Chambers Major\CASES\Taylor v. McDonald et al (habe)\11cv1165-Substitute.wpd, 122812 -2- 11cv1165

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