(HC)Uhuru v. The People of the State of California

Filing 11

ORDER: (1) Granting Application to Proceed In Forma Pauperis. and (2) Dismissing Amended Petition Without Prejudice and With Leave to Amend. Signed by Judge Cathy Ann Bencivengo on 6/4/2021.(All non-registered users served via U.S. Mail Service. Amended Petition form mailed with order)(anh)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

KOHEN DIALLO UHURU,

Case No.: 3:21-cv-1058-CAB-JLB
Petitioner,

12
13

v.

14

PEOPLE OF THE STATE OF
CALIFORNIA,

15
16

Respondent.

ORDER: (1) GRANTING
APPLICATION TO PROCEED IN
FORMA PAUPERIS, AND (2)
DISMISSING AMENDED PETITION
WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND

17
18

On May 24, 2021, Petitioner, a state prisoner proceeding pro se, filed a Petition for

19

Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed

20

in forma pauperis in the United States District Court for the Eastern District of California.

21

(ECF Nos. 1 & 2.) On June 1, 2021, Petitioner filed a First Amended Petition and another

22

request to proceed in forma pauperis. (ECF Nos. 5 & 6.) Although the First Amended

23

Petition appears to be merely an exact copy of the original Petition, the court deems the

24

Amended Petition to be the operative pleading. 28 U.S.C. § 2242 (stating habeas petitions

25

“may be amended or supplemented as provided in the rules of procedure applicable to

26

civil actions”); see also Fed. R. Civ. P. 15(a)(1) (“A party may amend its pleading once

27

as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to

28

which a responsive pleading is required, 21 days after service of a responsive pleading or
1
3:21-cv-1058-CAB-JLB

1

21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.”). The

2

United States District Court for the Eastern District of California transferred the action to

3

this Court on June 3, 2021. (ECF No. 8.)

4

APPLICATIONS TO PROCEED IN FORMA PAUPERIS

5

According to Petitioner’s trust account statement, Petitioner has no funds on

6

account at the California correctional institution in which he is presently confined.

7

Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS Petitioner’s

8

applications to proceed in forma pauperis (ECF Nos. 2 & 6), and allows Petitioner to

9

prosecute the above-referenced action without being required to prepay fees or costs and

10

without being required to post security. The Clerk of the Court shall file the First

11

Amended Petition for Writ of Habeas Corpus without prepayment of the filing fee.

12
13

FAILURE TO NAME A PROPER RESPONDENT
Review of the First Amended Petition reveals that Petitioner has failed to name a

14

proper respondent. On federal habeas, a state prisoner must name the state officer having

15

custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.

16

1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction

17

when a habeas petition fails to name a proper respondent. See id.

18

The warden is the typical respondent. However, “the rules following section 2254

19

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

20

warden of the institution in which the petitioner is incarcerated . . . or the chief officer in

21

charge of state penal institutions.’” Id. (quoting Rules Governing § 2254, Rule 2(a), 28

22

U.S.C. foll. § 2254 advisory committee’s note). If “a petitioner is in custody due to the

23

state action he is challenging, ‘[t]he named respondent shall be the state officer who has

24

official custody of the petitioner (for example, the warden of the prison).’” Id. (quoting

25

Rule 2, 28 U.S.C. foll. § 2254 advisory committee’s note).

26

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

27

writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is

28

in custody. The actual person who is [the] custodian [of the petitioner] must be the
2
3:21-cv-1058-CAB-JLB

1

respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement

2

exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the

3

person who will produce “the body” if directed to do so by the Court. “Both the warden

4

of a California prison and the Director of Corrections for California have the power to

5

produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895.

6

Here, Petitioner has incorrectly named “People of the State of California,” as

7

Respondent. In order for this Court to entertain the Petition filed in this action, Petitioner

8

must name the warden in charge of the state correctional facility in which Petitioner is

9

presently confined or the Secretary of the California Department of Corrections and

10

Rehabilitation. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per

11

curiam).

12
13

CONCLUSION
Based on the foregoing, the Court GRANTS Petitioner’s requests to proceed in

14

forma pauperis (ECF Nos. 2 & 6) and DISMISSES this action without prejudice and

15

with leave to amend because Petitioner has failed to state name a proper respondent. To

16

have this case reopened, Petitioner must, no later August 13, 2021, file a Second

17

Amended Petition that cures the pleading deficiencies set forth above. A blank Second

18

Amended Petition is included with this Order for Petitioner’s convenience.

19
20

IT IS SO ORDERED.
Dated: June 4, 2021

21
22
23
24
25
26
27
28
3
3:21-cv-1058-CAB-JLB