(HC) Sunny v. People of the State of CA ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN SUNNY, No. 1:23-cv-00247-ADA-HBK (HC) 12 Petitioner, 13 v. ORDER GRANTING PETITIONER LEAVE TO FILE MOTION TO AMEND TO NAME A 14 PEOPLE OF THE STATE OF PROPER RESPONDENT CALIFORNIA, 15 TWENTY-ONE DAY DEADLINE Respondent. 16 17 18 19 20 On February 13, 2023, Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. 21 § 2254. (Doc. No. 1). Petitioner names the “People of the State of California” as respondent. 22 However, the “People of the State of California” is not a proper respondent. The Court sua 23 sponte grants Petitioner leave to amend the Petition to name a proper respondent in order to avoid 24 dismissal of the action. 25 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 26 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 27 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 28 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 1 A petition for habeas corpus should not be dismissed without leave to amend unless it appears 2 that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 3 F.2d 13, 14 (9th Cir. 1971). 4 A petitioner seeking habeas corpus relief must name the officer having custody of him as 5 the respondent to the petition. Rule 2(a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. 6 Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 7 (9th Cir. 1994). Normally, the person having custody of an incarcerated petitioner is the warden 8 of the prison in which the petitioner is incarcerated because the warden has "day-to-day control 9 over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also 10 Stanley, 21 F.3d at 360. However, the chief officer in charge of penal institutions is also 11 appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or 12 parole, the proper respondent is his probation or parole officer and the official in charge of the 13 parole or probation agency or correctional agency. Id. 14 Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition 15 for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 16 1326 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd 17 Cir. 1976). The Court will afford Petitioner an opportunity to cure this defect by amending the 18 petition to name the proper respondent, such as the warden of his facility. See West v. Louisiana, 19 478 F.2d 1026, 1029 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d 363 (5th Cir. 20 1975) (en banc) (allowing petitioner to amend petition to name proper respondent); Ashley v. 21 State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). 22 In the interests of judicial economy, Petitioner need not file an amended petition. Instead, 23 Petitioner may file a motion entitled "Motion to Amend Petition to Name Proper Respondent" in 24 which Petitioner names the proper respondent he seeks to substitute in this action. 25 Accordingly, it is ORDERED: 26 1. The Court sua sponte GRANTS Petitioner leave file a motion to amend the Petition 27 and name a proper respondent. 28 2. Petitioner must deliver his motion to correctional officials for mailing no later than 1 twenty-one days (21) from the date of service of this Order. 2 3. Petitioner’s failure to timely comply with this Order will result in a recommendation 3 that the Petition be dismissed without further notice. 4 > | Dated: _ March 15,2023 Mihaw. □□ fareh Hack 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28