(HC) Calloway, Jr. v. The People of the State of California

• Court: District Court, E.D. California
• Decided: April 9, 2024
• Docket: 1:24-cv-00330
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TONY CARL CALLOWAY, JR., No. 1:24-cv-00330-HBK (HC) 12 Petitioner, ORDER GRANTING PETITIONER LEAVE TO FILE MOTION TO AMEND TO NAME A 13 v. PROPER RESPONDENT 14 THE PEOPLE OF THE STATE OF THIRTY DAY DEADLINE CALIFORNIA, 15 Respondent. 16 17 On March 20, 2024, Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 18 2254. (Doc. No. 1). Petitioner names “the People of the State of California” as respondent in this 19 action. (See generally id.). This is not a proper respondent; therefore, Petitioner will be granted 20 leave to amend the respondent in order to avoid dismissal of the action. 21 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 22 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 23 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 24 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 25 A petition for habeas corpus should not be dismissed without leave to amend unless it appears 26 that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 27 F.2d 13, 14 (9th Cir. 1971). 28 A petitioner seeking habeas corpus relief must name the officer having custody of him as 1 | the respondent to the petition. Rule 2(a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. 2 | Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 3 | (9th Cir. 1994). Normally, the person having custody of an incarcerated petitioner is the warden 4 | of the prison in which the petitioner is incarcerated because the warden has "day-to-day control 5 | over" the petitioner. Brittingham vy. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also 6 | Stanley, 21 F.3d at 360. However, the chief officer in charge of penal institutions is also 7 | appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or 8 | parole, the proper respondent is his probation or parole officer and the official in charge of the 9 | parole or probation agency or correctional agency. Id. 10 Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition 11 for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 12 | 1326 (th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd 13 | Cir. 1976). The Court will afford Petitioner an opportunity to cure this defect by amending the 14 | petition to name the proper respondent, such as the warden of his facility. See West v. Louisiana, 15 | 478 F.2d 1026, 1029 (Sth Cir. 1973), vacated in part on other grounds, 510 F.2d 363 (Sth Cir. 16 | 1975) (en banc) (allowing petitioner to amend petition to name proper respondent); Ashley v. 17 | State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). In the interests of judicial economy, 18 | Petitioner need not file an amended petition. Instead, Petitioner may file a motion entitled 19 | "Motion to Amend Petition to Name Proper Respondent" in which Petitioner identifies the name 20 || of the proper respondent he seeks to substitute in this action. 21 Accordingly, it is ORDERED: 22 Petitioner is GRANTED thirty days (30) from the date of service of this Order in which 23 | to file a motion to amend the instant petition and name a proper respondent. Failure to timely 24 | comply with this Order will result in a recommendation that the petition be dismissed without 25 | further notice. °° | Dated: __April 9, 2024 Wh fareh fackte 27 HELENA M. BARCH-KUCHTA 38 UNITED STATES MAGISTRATE JUDGE