(HC) Sutter v. Gastelo ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDON CARL SUTTER, Case No. 1:19-cv-01091-SKO-HC 12 Petitioner, ORDER GRANTING PETITIONER LEAVE TO FILE MOTION TO AMEND TO NAME 13 v. A PROPER RESPONDENT 14 PEOPLE OF THE STATE OF [THIRTY DAY DEADLINE] CALIFORNIA, 15 Respondent. 16 17 18 On August 12, 2019, Petitioner filed the instant federal petition for writ of habeas corpus 19 in this Court. He names the People of the State of California as Respondent in this matter. 20 However, the People of the State of California is not a proper respondent. Petitioner will be 21 granted leave to amend the respondent in order to avoid dismissal of the action. 22 DISCUSSION 23 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 24 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 25 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 26 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 27 A petition for habeas corpus should not be dismissed without leave to amend unless it appears 1 F.2d 13, 14 (9th Cir. 1971). 2 In this case, Petitioner names the People of the State of California as Respondent. A 3 petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer having 4 custody of him as the respondent to the petition. Rule 2 (a) of the Rules Governing § 2254 Cases; 5 Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 6 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of an incarcerated 7 petitioner is the warden of the prison in which the petitioner is incarcerated because the warden 8 has "day-to-day control over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th 9 Cir. 1992); see also Stanley, 21 F.3d at 360. However, the chief officer in charge of state penal 10 institutions is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner 11 is on probation or parole, the proper respondent is his probation or parole officer and the official 12 in charge of the parole or probation agency or state correctional agency. Id. 13 Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition 14 for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 15 1326 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd 16 Cir. 1976). However, the Court will give Petitioner the opportunity to cure this defect by 17 amending the petition to name a proper respondent, such as the warden of his facility. See West 18 v. Louisiana, 478 F.2d 1026, 1029 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d 19 363 (5th Cir. 1975) (en banc) (allowing petitioner to amend petition to name proper respondent); 20 Ashley v. State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). In the interests of judicial 21 economy, Petitioner need not file an amended petition. Instead, Petitioner may file a motion 22 entitled "Motion to Amend the Petition to Name a Proper Respondent" wherein Petitioner may 23 name the proper respondent in this action. 24 /// 25 /// 26 /// 27 /// 1 ORDER 2 Based on the foregoing, Petitioner is GRANTED thirty days from the date of service of 3 this order in which to file a motion to amend the instant petition and name a proper respondent. 4 Failure to amend the petition and state a proper respondent will result in dismissal of the petition 5 for lack of jurisdiction. 6 IT IS SO ORDERED. 7 Sheila K. Oberto 8 Dated: August 21, 2019 /s/ . UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27