Julius Harris v. Josie Gastelo ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ) JULIUS HARRIS, et al., ) Case No. CV 19-7052-CJC (JEM) 12 ) Petitioner, ) 13 ) MEMORANDUM AND ORDER v. ) DISMISSING PETITION WITH 14 ) LEAVE TO AMEND JOSIE GASTELO, et al., ) 15 ) Respondent. ) 16 ) 17 On August 13, 2019, Julius Harris, proceeding pro se and in forma pauperis, filed a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“Petition”). He names 19 himself and his co-defendant Michael Dunn as Petitioners. However, the Petition was 20 submitted and signed only by Harris. He names Josie Gastelo and People of California as 21 Respondents. 22 The Court's review of the Petition reveals that it is deficient for the following reasons: 23 Harris Cannot File on Behalf of Michael Dunn 24 The Petition names both Harris and his co-defendant Michael Dunn as Petitioners. 25 However, the Petition was submitted and signed only by Harris. Pursuant to Local Rule 83- 26 2.2.1: “Any person representing himself or herself in a case without an attorney must 27 appear pro se for such purpose. That representation may not be delegated to any other 28 1 necessary for him to do so, as Dunn may choose whether to file a petition on his own 2 behalf. 3 If Harris chooses to file an amended petition, he should not attempt to file on behalf 4 of Dunn. Rather, Harris should name only himself as the Petitioner. The clerk shall return 5 the Petition to Harris, and he may correct this issue by striking Michael Dunn from the 6 caption on page 1. 7 Inclusion of an Improper Respondent 8 A petitioner seeking habeas corpus relief must name the state officer having custody 9 of him as the respondent to the petition. Rule 2(a) of the Rules Governing § 2254 Cases; 10 Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme 11 Court, 21 F.3d 359, 360 (9th Cir. 1994). “A custodian is the person having a day-to-day 12 control over the prisoner. That person is the only one who can produce the body of the 13 petitioner.” Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (internal 14 quotations and citation omitted). 15 It appears that Josie Gastelo is a proper respondent. However, People of California 16 is not. If Harris chooses to file an amended petition, he should delete People of California 17 as a respondent. Harris may correct this issue by striking People of California from the 18 caption on page 1. 19 Failure to Identify the Claims Within the Petition 20 Harris fails to identify his claims on pages 5-7 of the Petition. Rather, he attaches 21 the briefs filed in support of his direct appeal. Although the Court could assume that Harris 22 intends to assert the claims contained in the attached briefs, those claims should be 23 articulated in the Petition itself. Harris may correct this issue by providing a short 24 description of each claim and referencing the relevant portions of the attached briefs on 25 pages 5-7 of the Petition. 26 27 28 1 * * * 2 Accordingly, the Petition is DISMISSED WITH LEAVE TO AMEND. If Harris elects 3 to pursue this action, he is ORDERED to file an amended petition no later than September 4 16, 2019. In the interest of judicial economy, the clerk is directed to return a copy of the 5 Petition to Harris. Harris shall: (1) strike “Michael Dunn” as a Petitioner on page one of the 6 petition form; (2) strike “State of California” as a Respondent on page one of the petition 7 form; and (3) identify the claims on pages 5-7 of the petition form by including a short 8 description of each claim he is asserting and referencing the relevant portions of the 9 attached briefs. The Petition should be re-labeled as the “First Amended Petition.” Once 10 these corrections are made, Harris shall return the First Amended Petition to the Court for 11 filing. 12 Harris shall immediately notify the Court of any change to his address. If Harris fails 13 to keep the Court informed of where he may be contacted, this action will be subject to 14 dismissal for failure to prosecute and failure to comply with a court order. See Local Rule 15 41-6. 16 Finally, Harris is cautioned that his failure to file a First Amended Petition by 17 September 16, 2019, may result in a recommendation that this action be dismissed without 18 prejudice for failure to prosecute and/or failure to comply with a court order. No extension 19 of this deadline will be granted absent a showing of good cause. 20 IT IS SO ORDERED. 21 22 DATED: August 16, 2019 /s/ John E. McDermott JOHN E. MCDERMOTT 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28