Jackson v. Atkins

Filing 7

ORDER TO SHOW CAUSE OR AMENDED on or before March 16, 2018, signed by Magistrate Judge J Richard Creatura. (GMR- cc: petitioner w/forms)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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LOWELL EDWARD JACKSON,
Petitioner,

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CASE NO. 3:17-cv-06085-RBL-JRC
ORDER TO SHOW CAUSE OR
AMEND

v.
CHUCK E. ATKINS,
Respondent.

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The District Court has referred this petition for a writ of habeas corpus to United States

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Magistrate Judge J. Richard Creatura. The Court’s authority for the referral is 28 U.S.C. §

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636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4. Petitioner filed the

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petition pursuant to 28 U.S.C. § 2254.

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Petitioner Lowell Edward Jackson appears to challenge his detention based on a Clark

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County conviction, alleging that his sentence has already been discharged. However, he is

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housed in Oregon and has not named the proper respondent for his petition, nor has he signed his

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petition under penalty of perjury. Therefore, petitioner is ordered to file an amended petition on

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ORDER TO SHOW CAUSE OR AMEND - 1

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the form provided by the Court including the correct respondent, or to otherwise show cause why

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the Court should not recommend that his petition be dismissed.

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BACKGROUND

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When he filed his original petition, petitioner was incarcerated at the Oregon State

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Penitentiary. Dkt. 1. He has since been relocated to the Marion County Jail. Dkt. 6. He originally

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filed his petition with the District Court for the District of Oregon. See Dkt. 3. However, that

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Court transferred the petition to the Western District of Washington because petitioner appears to

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challenge the execution of an order entered in Clark County, Washington. Id.

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Though his petition is unclear, petitioner’s supporting documents indicate that he is being

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held in Oregon based on a Clark County warrant. See Dkt. 1 at 11-12. The Court interprets

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petitioner’s habeas petition to allege that petitioner is being unlawfully held in Oregon based on

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an expired Clark County judgment. Dkt. 1 at 2-3.

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DISCUSSION

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Initially, the Court notes that petitioner has included the incorrect respondent on his

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habeas petition. Under Rule 2(a) of the Rules Governing Section 2254 Cases, “the petition must

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name as respondent the state officer who has custody.” (emphasis added). That state officer is the

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person “with the ability to produce the prisoner’s body before the habeas court.” Rumsfeld v.

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Padilla, 542 U.S. 426, 435 (2004). The proper state officer is determined based on petitioner’s

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custody at the time he filed his petition. See, e.g., Carson v. Hood, 1999 WL 978017 at *3 (D.

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Oregon 1999) (noting that warden was a proper respondent because warden had control of

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petitioner’s release when petitioner initially filed his petition); see also Maleng v. Cook, 490 U.S.

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488, 490-91 (1989) (when prisoner filed petition while restrained, custodian was proper

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respondent even after petitioner was released).

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ORDER TO SHOW CAUSE OR AMEND - 2

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Here, petitioner has named Chuck Atkins, the Clark County Sheriff, as the respondent.

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Dkt. 1. However, the record reflects petitioner was housed at the Oregon State Penitentiary when

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he filed this action and therefore respondent Atkins is not the correct respondent. Dkt. 6.

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Further, petitioner has not filed his habeas petition in a form substantially following the

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form prescribed by the Western District of Washington and has not signed the petition under

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penalty of perjury. See Dkt. 1.

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[t]he petition must: (1) specify all the grounds for relief available to the petitioner;
(2) state the facts supporting each ground; (3) state the relief requested; (4) be
printed, typewritten, or legibly handwritten; and (5) be signed under penalty of
perjury by the petitioner or person authorized to sign it for the petitioner under 28
U.S.C. §2242.

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Rules Governing Section 2254 Petitions, Rule 2(c) (emphasis added). Also, the petition must

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“substantially follow” a form prescribed by the local district court or the form attached to the

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Rules Governing Section 2254 Cases. Id., Rule 2(d).

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If petitioner intends to pursue this habeas action, he must file an amended petition

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naming the correct defendant in compliance with Rule 2(a) of the Rules Governing Section 2254

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Cases on the form provided by the Court and must sign it under penalty of perjury. The amended

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petition must also be legibly rewritten or retyped in its entirety, it should be an original and not a

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copy, it should contain the same case number, and it may not incorporate any part of the original

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petition by reference. The amended petition will act as a complete substitute for the original

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petition, and not as a supplement. Included as the respondent should be the superintendent of the

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prison where petitioner resided when he filed the petition. Because petitioner was housed at the

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Oregon State Penitentiary when he originally filed his habeas petition, the appropriate

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respondent is Brandon Kelly, the superintendent of that prison.

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ORDER TO SHOW CAUSE OR AMEND - 3

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CONCLUSION

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If petitioner fails to adequately address the issues raised herein and file an amended

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petition on or before March 16, 2018, the undersigned will recommend dismissal of this action.
The Clerk is directed to provide petitioner with the forms for filing a petition for habeas

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corpus relief pursuant to 28 U.S.C. § 2254. The Clerk is further directed to provide copies of this

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Order to petitioner.

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Dated this 14th day of February, 2018.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER TO SHOW CAUSE OR AMEND - 4