(HC) Kindred v. Superior Court of California County of Orange ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD SCOTT KINDRED, ) Case No.: 1:21-cv-00532-JLT (HC) ) 12 Petitioner, ) ORDER DISMISSING PETITION WITH LEAVE ) TO FILE A FIRST AMENDED PETITION 13 v. ) ) [THIRTY-DAY DEADLINE] 14 SUPERIOR COURT OF CALIFORNIA ) COUNTY OF ORANGE, 15 ) ) 16 Respondent. ) 17 Petitioner filed a Petition for Writ of Habeas Corpus on March 29, 2021. (Doc. 1.) A 18 preliminary screening of the petition reveals that the petition fails to name the proper respondent. 19 Therefore, the 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 Petitioner names the Superior Court of California County of Orange 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, 21 6 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of an incarcerated petitioner is the 7 warden of the prison in which the petitioner is incarcerated because the warden has “day-to-day 8 control over” the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also 9 Stanley, 21 F.3d at 360. However, the chief officer in charge of state penal institutions is also 10 appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or 11 parole, the proper respondent is his probation or parole officer and the official in charge of the parole 12 or probation agency or state correctional agency. Id. 13 Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition for 14 lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 1326 15 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd Cir. 1976). 16 However, the Court will give Petitioner the opportunity to cure this defect by amending the petition to 17 name a proper respondent, such as the warden of his facility. See West v. Louisiana, 478 F.2d 1026, 18 1029 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d 363 (5th Cir. 1975) (en banc) 19 (allowing petitioner to amend petition to name proper respondent); Ashley v. State of Washington, 394 20 F.2d 125 (9th Cir. 1968) (same). In any amended petition, Petitioner must name a proper respondent. 21 Petitioner will be granted an opportunity to file a First Amended Petition to cure this 22 deficiency. Petitioner is advised that he should entitle his pleading, “First Amended Petition,” and he 23 should reference the instant case number. Failure to comply with this order will result in dismissal of 24 the action. 25 II. ORDER 26 Accordingly, the Court ORDERS: 27 1) The Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE for 28 failure to name a proper respondent; and 1 2) Petitioner is GRANTED thirty days from the date of service of this order to file a First 2 Amended Petition. 3 4 IT IS SO ORDERED. 5 Dated: April 7, 2021 _ /s/ Jennifer L. Thurston 6 CHIEF UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28