Schmidt v. Jaime ( 2020 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 DEVIN LEE JAMES SCHMIDT, 6 Case No. 20-cv-00219-YGR (PR) Petitioner, 7 ORDER TO SHOW CAUSE v. 8 RALPH DIAZ, Secretary of California 9 Department of Corrections and Rehabilitation (“CDCR”), 10 Respondent. 11 Petitioner, a state parolee, has filed this pro se petition for a writ of habeas corpus pursuant 12 to 28 U.S.C. § 2254. He has paid the full filing fee. 13 The rules governing relief under 28 U.S.C. § 2254 require a person in custody pursuant to 14 the judgment of a state court to name the “‘state officer having custody’” of him as the respondent. 15 Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (quoting Rule 2(a) of the Rules 16 Governing Habeas Corpus Cases Under Section 2254). This person typically is the warden of the 17 facility in which the petitioner is incarcerated. See Stanley v. California Supreme Court, 21 F.3d 18 359, 360 (9th Cir. 1994). Failure to name the petitioner’s custodian as a respondent deprives 19 federal courts of personal jurisdiction, see id., but the allegations of the petition are to be liberally 20 construed when considering whether the proper respondent has been named, see Belgarde v. 21 Montana, 123 F.3d 1210, 1214 (9th Cir. 1997). The “‘state officer having custody’” also may 22 include “‘the chief officer in charge of state penal institutions.’” Ortiz-Sandoval, 81 F.3d at 894 23 (quoting Rule 2(a) advisory committee’s note). 24 Here, Petitioner has named as Respondent George Jaime, the warden of the California City 25 Correctional Facility. However, the proper respondent should be “‘the chief officer in charge of 26 state penal institutions,’” who has “custody” of Petitioner, a parolee. See Rule 2(a) advisory 27 committee’s note; Fed. R. Civ. P. 19(a). Accordingly, Secretary of CDCR Ralph Diaz is named as 1 the respondent in this action in place of Warden Jaime. See Ortiz-Sandoval, 81 F.3d at 894. 2 It does not appear from the face of the petition that it is without merit. Good cause 3 appearing, the Court hereby issues the following orders: 4 1. The Clerk of the Court shall serve a copy of this Order and the petition and all 5 attachments thereto upon Respondent and Respondent’s attorney, the Attorney General of the 6 State of California. The Clerk shall also serve a copy of this Order on Petitioner at his current 7 address. 8 2. Respondent shall file with this Court and serve upon Petitioner, within sixty (60) 9 days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules 10 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. 11 Respondent shall file with the Answer a copy of all portions of the relevant state records that have 12 been transcribed previously and that are relevant to a determination of the issues presented by the 13 petition. 14 3. If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse 15 with the Court and serving it on Respondent within sixty (60) days of his receipt of the Answer. 16 Should Petitioner fail to do so, the petition will be deemed submitted and ready for decision sixty 17 (60) days after the date Petitioner is served with Respondent’s Answer. 18 4. Respondent may file with this Court and serve upon Petitioner, within sixty (60) 19 days of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an 20 Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 21 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court and serve on 22 Respondent an opposition or statement of non-opposition to the motion within sixty (60) days of 23 receipt of the motion, and Respondent shall file with the Court and serve on Petitioner a reply 24 within fourteen (14) days of receipt of any opposition. 25 5. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep the 26 Court and Respondent informed of any change of address and must comply with the Court’s 27 orders in a timely fashion. Pursuant to Northern District Local Rule 3-11 a party proceeding pro 1 address specifying the new address. See L.R. 3-11(a). The Court may dismiss a pro se action 2 || without prejudice when: (1) mail directed to the pro se party by the Court has been returned to the 3 || Court as not deliverable, and (2) the Court fails to receive within sixty days of this return a written 4 || communication from the pro se party indicating a current address. See L.R. 3-11(b); see also 5 Martinez v. Johnson, 104 F.3d 769, 772 (Sth Cir. 1997) (Rule 41(b) applicable in habeas cases). 6 Petitioner must also serve on Respondent’s counsel all communications with the Court by 7 || mailing a true copy of the document to Respondent’s counsel. 8 6. Upon a showing of good cause, requests for a reasonable extension of time will be 9 || granted provided they are filed on or before the deadline they seek to extend. 10 7. Secretary of CDCR Ralph Diaz is substituted as Respondent pursuant Rule 2(a) of 11 the Rules Governing Habeas Corpus Cases Under Section 2254. 12 IT IS SO ORDERED. 5 13 || Dated; March 9, 2020 Lagene Magctoff beer Y, NE GONZAFEZ ROGERS United States District Judge 16 18 19 20 21 22 23 24 25 26 27 28