McCreary v. Spearman ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JEFFREY STEVEN McCREARY, Case No.: 18cv0789-CAB (BGS) 12 Petitioner, ORDER SUA SPONTE 13 v. SUBSTITUTING RESPONDENT 14 RALPH DIAZ, Secretary, 15 Respondent. 16 17 On April 23, 2018, Petitioner, a state prisoner proceeding pro se, filed a Petition for 18 a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, naming M.E. Spearman, the 19 Warden of the High Desert State Prison in Susanville, California where Petitioner was 20 confined at the time, as Respondent, along with the California Attorney General as an 21 additional Respondent. (ECF No. 1.) On October 23, 2019, Petitioner notified the Court 22 he had been transferred to the California Correctional Institution at Tehachapi, California. 23 (ECF No. 30.) 24 A writ of habeas corpus acts upon the custodian of the state prisoner. 28 U.S.C. 25 § 2242; Rule 2(a), 28 U.S.C. foll. § 2254. Because Petitioner’s place of custody has 26 changed, so has the Respondent to this action. In order to conform with the requirements 27 of Rule 2(a) of the Rules Governing § 2254 Cases and to avoid changing the Respondent 28 if Petitioner is transferred again, the Court hereby sua sponte orders the substitution of 1 ||Ralph Diaz, Secretary of the California Department of Corrections and Rehabilitation, as 2 ||Respondent in place of Stuart Sherman. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 3 || (9th Cir. 1996) (stating that the respondent in § 2254 proceedings may be the chief officer 4 ||/in charge of state penal institutions). Additionally, the Attorney General of the State of 5 || California is not a proper respondent in this action. Rule 2 of the Rules following § 2254 6 || provides that the state officer having custody of the petitioner shall be named as respondent. 7 || Rule 2(a), 28 U.S.C. foll. § 2254. However, “[i]f the petitioner is not yet in custody — but 8 ||may be subject to future custody — under the state-court judgment being contested, the 9 || petition must name as respondents both the officer who has current custody and the 10 || attorney general of the state where the judgement was entered.” Rule 2 (b), 28 U.S.C. foll. 11 |}§ 2254. Here, there is no basis for Petitioner to have named the Attorney General as a 12 respondent in this action. 13 The Court HEREBY ORDERS the substitution of Ralph Diaz, Secretary of the 14 || California Department of Corrections and Rehabilitation as Respondent in place of M.E. 15 Spearman and the California Attorney General. The Clerk of the Court will modify the 16 || docket to reflect “Ralph Diaz, Secretary” in place of the former respondents. 17 IT IS SO ORDERED. 18 Dated: December 4, 2019 2 p / / 19 on. Bernard G. Skomal 20 United States Magistrate Judge 21 22 23 24 25 26 27 28