(HC) Howard v. Cates ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAMONT J. HOWARD, ) Case No.: 1:20-cv-00933-JLT (HC) ) 12 Petitioner, ) ORDER DISMISSING PETITION WITH LEAVE ) TO FILE A FIRST AMENDED PETITION 13 v. ) ) [THIRTY-DAY DEADLINE] 14 SUPERIOR COURT METROPOLITAN ) DIVISION OF COUNTY OF KERN, 15 Respondent. ) ) 16 ) 17 Petitioner filed a Petition for Writ of Habeas Corpus on June 5, 2020. (Doc. 1.) A preliminary 18 screening of the petition reveals that the petition fails to name the proper respondent. Therefore, the 19 Court will DISMISS the petition with leave to file an amended petition. 20 I. DISCUSSION 21 A. Preliminary Review of Petition 22 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary 23 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 24 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 25 the district court. . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory 26 Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, 27 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 28 answer to the petition has been filed. 1 B. Failure to Name a Proper Respondent 2 A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer 3 having custody of him as the respondent to the petition. Rule 2(a) of the Rules Governing § 2254 4 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme 5 Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of an incarcerated 6 petitioner is the warden of the prison in which the petitioner is incarcerated because the warden has 7 “day-to-day control over” the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 8 1992); see also Stanley, 21 F.3d at 360. However, the chief officer in charge of state penal institutions 9 is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation 10 or parole, the proper respondent is his probation or parole officer and the official in charge of the 11 parole or probation agency or state correctional agency. Id. 12 Petitioner names the “Superior Court Metropolitan Division of County of Kern” as the 13 Respondent. However, the Superior Court Metropolitan Division of County of Kern is not the warden 14 or chief officer of the institution where Petitioner is confined, and, thus, does not have day-to-day 15 control over Petitioner. Petitioner is presently confined at the California Correctional Institution in 16 Tehachapi, California. The current director or warden of that facility is the person Petitioner should 17 name as Respondent. 18 Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition for 19 lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 1326 20 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd Cir. 1976). 21 However, the Court will give Petitioner the opportunity to cure this defect by amending the petition to 22 name a proper respondent, such as the warden of his facility. See West v. Louisiana, 478 F.2d 1026, 23 1029 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d 363 (5th Cir. 1975) (en banc) 24 (allowing petitioner to amend petition to name proper respondent); Ashley v. State of Washington, 394 25 F.2d 125 (9th Cir. 1968) (same). In any amended petition, Petitioner must name a proper respondent. 26 Petitioner will be granted an opportunity to file a First Amended Petition to cure this deficiency. 27 Petitioner is advised that he should entitle his pleading, “First Amended Petition,” and he should 28 reference the instant case number. Failure to comply with this order will result in dismissal of the 1 action. 2 II. ORDER 3 Accordingly, the Court ORDERS: 4 1) The Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE for 5 failure to name a proper respondent; and 6 2) Petitioner is GRANTED thirty days from the date of service of this order to file a First 7 Amended Petition. 8 9 IT IS SO ORDERED. 10 Dated: July 13, 2020 /s/ Jennifer L. Thurston 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28