Tucker v. Hulick et al

Filing 39

ORDER SUBSTITUTING PARTY. Mike Atchison is substituted as the Respondent in this action. Signed by Magistrate Judge Donald G. Wilkerson on 12/12/11. (alg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RINANDO T. TUCKER,
Petitioner,
v.
DONALD A. HULICK,
Respondent.

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Case No.: 06-cv-00998-GPM-DGW

ORDER
This action comes before the Court upon review of the docket. Petitioner Rinando T.
Tucker, an inmate in the Menard Correctional Center, filed an amended petition for writ of
habeas corpus under 28 U.S.C. § 2254 on June 22, 2009 (Doc. 29). He named Donald A. Hulick
as Respondent. On October 14, 2009, Respondent Hulick filed his First Amended Response to
the Amended Petition (Doc. 33).
A petition for a writ of habeas corpus must include the “name of the person who has
custody” over the petitioner. 28 U.S.C. §2242. Any writ issued by a court is to be directed “to
the person having custody over the person detained.” 28 U.S.C. §2243. In Rumsfeld v. Padilla,
542 U.S. 426 (2004), the Supreme Court reaffirmed its holding regarding the proper respondent
in a habeas corpus action. The Court emphasized that for over 100 years the Supreme Court has
interpreted the statute to mean that the proper respondent in a habeas corpus action is the person
who has “immediate custody” over the petitioner “with the power to produce the body of such
party before the court or judge, that he may be liberated if no sufficient reason is shown to the
contrary.” Id. at 435 (quoting Wales v. Whitney, 114 U.S. 564, 574 (1885)). Applying this rule,
the proper respondent is Mike Atchison, the warden at the Menard Correctional Center.

Accordingly, Mike Atchison, is SUBSTITUTED as the Respondent in this action. The
caption on all future filings should read: Rinando T. Tucker v. Mike Atchison.
DATED: December 12, 2011

DONALD G. WILKERSON
United States Magistrate Judge