Marshall v. Oldfield et al

Filing 5

ORDER that Mr. Marshal fill out and return the entire in forma pauperis application and file an amended petition on the form provided by the Court. The IFP application and Amended Petition are due by 7/11/14. Signed by Magistrate Judge Karen L Strombom. (CMG; cc to Petitioner w/new 2254 packet)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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MARTIN MARSHAL,
No. C14-05346 RBL/KLS

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Petitioner,
v.
DANELA AND JOLYNN OLDFIELD,

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Respondent.

ORDER TO FILE A COMPLETE
APPLICATION TO PROCEED IN
FORMA PAUPERIS AND AN AMENDED
HABEAS CORPUS PETITION NAMING
A PROPER RESPONDENT

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This petition for a writ of habeas corpus had been referred to the undersigned Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1), Local Magistrate Judge Rules 3 and 4. Petitioner,
Martin Marshal, is attempting to challenge a state conviction and sentence. He originally filed

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the action as a civil rights claim and the Clerk’s Office correctly opened the action as a Habeas
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Corpus petition filed pursuant to 28 U.S.C. § 2254.
The Clerk’s Office sent Mr. Marshal a habeas in forma pauperis application and a habeas

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corpus form petition. Dkt. 2. Mr. Marsahl returned only the first page of the in forma pauperis

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application and when he filled out the form petition he listed his alleged victim and her mother as

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respondents. Dkt. 3 and 4.

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ORDER - 1

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Mr. Marshal must to start over. The Clerk’s Office is directed to send him another

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packet. Mr. Marshal must fill out and return the entire in forma pauperis application. Mr.

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Marshal also must fill out another habeas corpus petition because alleged victims and their

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mothers are not the proper party to respond to a federal habeas corpus petition.

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The proper respondent is “the person having custody of the person detained.” 28 U.S.C.
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§ 2243. This person is usually the superintendent of the facility where petitioner, Mr. Marshal, is

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incarcerated. Mr. Marshal’s failure to name the correct party deprives this Court of personal

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jurisdiction. See Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

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The Court Orders Mr. Marshal to file an amended petition on the form provided by the
Court. The amended petition will act as a complete substitute for the original. The amended
petition is due on or before July 11, 2014. Failure to comply with this order will result in a

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Report and Recommendation that this action be dismissed for failure to comply with a court
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order and lack of in personam jurisdiction over respondent.
The Clerk is directed to mail a copy of this Order to petitioner and note the July 11,
2014, deadline on the court’s calendar.
Dated this 5th day of June, 2014.

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A

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Karen L. Strombom
United States Magistrate Judge

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ORDER - 2