Broadnax v. Allison

Filing 3

ORDER: (1) Denying Application to Proceed in forma pauperis and (2) Dismissing case without prejudice and with leave to amend for Petitioner's failure to name a proper respondent, and state grounds for relief in the petition. In order to have th is case reopened, Petitioner must submit no later than May 15, 2012, a copy of this Order with the $5.00 fee or with adequate proof of his inability to pay the fee and a First Amended Petition. Signed by Judge Michael M. Anello on 3/9/12. (copy of Order and blank IFP form mailed to Petitioner)(All non-registered users served via U.S. Mail Service)(lao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DEGHAWN BROADNAX,

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Civil No.
Petitioner,
ORDER:

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v.

(1) DENYING APPLICATION TO
PROCEED IN FORMA PAUPERIS and

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12-0560 MMA (RBB)

KATHLEEN ALLISON, Warden

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Respondent.

(2) DISMISSING CASE
WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND

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Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254.

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APPLICATION TO PROCEED IN FORMA PAUPERIS

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Petitioner has filed a document declaring his indigence which this Court construes as a

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request to proceed in forma pauperis. The request to proceed in forma pauperis is denied

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because Petitioner has not provided the Court with sufficient information to determine

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Petitioner’s financial status. A request to proceed in forma pauperis made by a state prisoner

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must include a certificate from the warden or other appropriate officer showing the amount of

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money or securities Petitioner has on account in the institution. Rule 3(a)(2), 28 U.S.C. foll.

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§ 2254; Local Rule 3.2. Petitioner has failed to provide the Court with the required Prison

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Certificate.
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FAILURE TO NAME PROPER RESPONDENT

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Review of the Petition reveals that Petitioner has failed to name a proper respondent. On

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federal habeas, a state prisoner must name the state officer having custody of him as the

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respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28

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U.S.C. foll. § 2254). Federal courts lack personal jurisdiction when a habeas petition fails to

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name a proper respondent. See id.

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The warden is the typical respondent. However, “the rules following section 2254 do not

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specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the warden of the

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institution in which the petitioner is incarcerated . . . or the chief officer in charge of state penal

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institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory committee’s note). If “a

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petitioner is in custody due to the state action he is challenging, ‘[t]he named respondent shall

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be the state officer who has official custody of the petitioner (for example, the warden of the

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prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 advisory committee’s note).

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A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a writ of]

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habeas corpus against the State under . . . [whose] authority . . . the petitioner is in custody. The

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actual person who is [the] custodian [of the petitioner] must be the respondent.” Ashley v.

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Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement exists because a writ of

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habeas corpus acts upon the custodian of the state prisoner, the person who will produce “the

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body” if directed to do so by the Court. “Both the warden of a California prison and the Director

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of Corrections for California have the power to produce the prisoner.” Ortiz-Sandoval, 81 F.3d

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at 895.

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Here, Petitioner has incorrectly named “Kathleen Allison,” as Respondent. In order for

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this Court to entertain the Petition filed in this action, Petitioner must name the warden in charge

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of the state correctional facility in which Petitioner is presently confined or the Director of the

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California Department of Corrections. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.

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1992) (per curiam).

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//

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FAILURE TO STATE GROUNDS FOR RELIEF IN PETITION

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In addition, Rule 2(c) of the Rules Governing Section 2254 Cases states that the petition

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“shall set forth in summary form the facts supporting each of the grounds . . . specified [in the

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petition].” Rule 2(c), 28 U.S.C. foll. § 2254. See also Boehme v. Maxwell, 423 F.2d 1056, 1058

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(9th Cir. 1970) (trial court’s dismissal of federal habeas proceeding affirmed where petitioner

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made conclusory allegations instead of factual allegations showing that he was entitled to relief).

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Here, Petitioner has violated Rule 2(c). Although Petitioner does not fail to state generalized

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constitutional grounds for relief, he does fails to provide specific factual allegations in support

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of such grounds in the petition.

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While courts should liberally interpret pro se pleadings with leniency and understanding,

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this should not place on the reviewing court the entire onus of ferreting out grounds for relief.

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Zichko v. Idaho, 247 F.3d 1015, 1020-21 (9th Cir. 2001).

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conclusory allegations without any specific facts in support of relief. A federal court may not

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entertain a petition that contains allegations which are conclusory.

The Court finds that the Petition contains

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In order to satisfy Rule 2(c), Petitioner must point to a “real possibility of constitutional

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error.” Cf. Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (internal quotation marks omitted).

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Facts must be stated, in the petition, with sufficient detail to enable the Court to determine, from

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the face of the petition, whether further habeas corpus review is warranted. Adams v.

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Armontrout, 897 F.2d 332, 334 (8th Cir. 1990). Moreover, the allegations should be sufficiently

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specific to permit the respondent to assert appropriate objections and defenses. Harris v. Allen,

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739 F. Supp. 564, 565 (W.D. Okla. 1989). Here, the lack of grounds for relief in the Petition

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prevents the Respondent from being able to assert appropriate objections and defenses.

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Due to Petitioner’s unsatisfactory showing, the Court dismisses the action without

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prejudice. Should Petitioner decide to file a new petition, he is advised to clearly and succinctly

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state all grounds for relief using the First Amended Petition form sent to Petitioner with this

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order.

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//

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CONCLUSION

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Based on the foregoing, the Court DENIES Petitioner’s request to proceed in forma

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pauperis, and DISMISSES the case without prejudice and with leave to amend for Petitioner’s

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failure to name a proper respondent, and state grounds for relief in the petition. In order to have

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this case reopened, Petitioner must submit no later than May 15, 2012, a copy of this Order

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with the $5.00 fee or with adequate proof of his inability to pay the fee AND a First Amended

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Petition that cures the deficiencies outlined above. The Clerk of Court is directed to send a

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blank Southern District of California In Forma Pauperis Application and blank First Amended

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Petition form to Petitioner along with a copy of this Order.

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IT IS SO ORDERED.
DATED: March 9, 2012

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Hon. Michael M. Anello
United States District Judge

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