(HC)Frelimo v. Lynch ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 OBA LEE FRELIMO, No. 2:21-cv-0194 AC P 11 Petitioner, 12 v. ORDER 13 BHP MEMBERS, et al., 14 Respondents.1 15 16 Petitioner, a state prisoner proceeding pro se, seeks habeas relief pursuant to 28 U.S.C. § 17 2254. ECF No. 1. The matter was referred to a United States Magistrate Judge pursuant to 28 18 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On February 8, 2021, the court ordered petitioner to file an application to proceed in 20 forma pauperis (“IFP”) or, in the alternative, to pay the filing fee in order to proceed with this 21 action. Petitioner was given thirty days to do so, and he was sent an application to proceed in 22 forma pauperis. See generally ECF No. 6. 23 On March 8, 2021, petitioner filed an “affidavit.” See ECF No. 7. In it, petitioner writes 24 in part that he is unable to pay the filing fee and that in any event, his sentence is illegal because 25 1 The court notes for the record that petitioner is currently housed at California State Prison - 26 Sacramento. See ECF No. 1 at 1. Jeff Lynch is the current acting warden at that facility. Therefore, the court shall direct the Clerk of Court to substitute his name as the respondent in this 27 matter in lieu of “BHP Members, et al.”. See Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (citation omitted) (stating proper respondent in federal habeas corpus petition is 28 petitioner’s immediate custodian). 1 | he was juvenile at the time of sentencing. See id. at 1. Petitioner asks the court to order his 2 | immediate release from prison. See ECF No. 7. 3 Petitioner’s affidavit does not provide the required information in support of his IFP 4 || application. The court will not consider any matters related to petitioner’s custodial status unless 5 || he first submits a completed IFP application or pays the filing fee. Petitioner will be provided a 6 || final opportunity to pay the filing fee or submit an in forma pauperis application that includes all 7 || required information. If petitioner does not pay the fee or submit a properly completed IFP 8 | application within thirty days, it will be recommended that his petition be dismissed. 9 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall: 10 1. Change respondent’s name from “BHP Members, et. al.” to “Jeff Lynch, Acting 11 || Warden” in the case caption of the docket, and 12 2. Send petitioner a second copy of the in forma pauperis application form used by this 13 || district. 14 IT IS FURTHER ORDERED that within thirty days of the date of this order, petitioner 15 | shall either file a completed application to proceed in forma pauperis or pay the appropriate filing 16 | fee. 17 | DATED: March 10, 2021 ~ Ig Chthwen— Clare ALLISON CLAIRE 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28