-SKO (HC) Armas v. People Of California, No. 1:2011cv00772 - Document 11 (E.D. Cal. 2011)
Court Description: ORDER VACATING 9 FINDINGS AND RECOMMENDATIONS; ORDER DISCHARGING 6 Order to Show Cause; ORDER GRANTING Petitioner Leave to File a Motion to Amend the Petition to Name a Proper Respondent No Later Than Thirty (30) Days After the Date of Service of This Order, signed by Magistrate Judge Sheila K. Oberto on 09/08/2011. ( 30 -Day Deadline)(Martin-Gill, S)
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-SKO (HC) Armas v. People Of California Doc. 11 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 AMADO ARMAS, 11 Petitioner, 12 v. 13 PEOPLE OF CALIFORNIA, 14 Respondent. 15 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—00772-SKO-HC ORDER VACATING FINDINGS AND RECOMMENDATIONS (DOC. 9) ORDER DISCHARGING ORDER TO SHOW CAUSE (DOC. 6) ORDER GRANTING PETITIONER LEAVE TO FILE A MOTION TO AMEND THE PETITION TO NAME A PROPER RESPONDENT NO LATER THAN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER 17 18 Petitioner is a state prisoner proceeding pro se with a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 The matter has been referred to the Magistrate Judge pursuant to 21 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303. 22 the Court is Petitioner’s petition, which was filed in this Court 23 on May 13, 2011. 24 I. Pending before Discharge of the Order to Show Cause and Vacating the Findings and Recommendations 25 On May 17, 2011, the Court issued an initial screening order 26 with respect to the petition in which the Court noted that 27 Petitioner had not named the proper respondent and granted 28 1 Dockets.Justia.com 1 Petitioner leave to file a motion to amend the petition to name a 2 proper respondent no later than thirty (30) days after the date 3 of service of the order. 4 failure to move to amend the petition and state a proper 5 respondent would result in a recommendation that the petition be 6 dismissed for lack of jurisdiction. 7 on Petitioner on May 17, 2011. 8 9 The order warned Petitioner that a The order was served by mail On June 27, 2011, the Court issued an order to Petitioner to show cause within twenty-one days why the action should not be 10 dismissed for Petitioner’s failure to file a motion to amend the 11 petition to name a proper respondent. 12 was served by mail on Petitioner on the same date. 13 Petitioner did not respond to the order to show cause, on July 14 29, 2011, the Court issued findings and recommendations to 15 dismiss the case for Petitioner’s failure to prosecute the 16 action. 17 Petitioner. 18 The order to show cause When The findings and recommendations were served on Petitioner filed objections to the findings and 19 recommendations on August 30, 2011. 20 Petitioner filed notices of change of address after the orders 21 mentioned above were served on Petitioner. 22 Petitioner may have failed to receive the copies of the orders 23 that were served by mail upon Petitioner. 24 continue to prosecute his petition. 25 26 27 28 The docket reflects that It appears that Petitioner seeks to Accordingly, the findings and recommendations that issued on July 29, 2011, are VACATED. Further, the order to show cause that issued on June 27, 2011, is DISCHARGED. 2 1 II. 2 Rule 4 of the Rules Governing § 2254 Cases in the United Screening the Petition 3 States District Courts (Habeas Rules) requires the Court to make 4 a preliminary review of each petition for writ of habeas corpus. 5 The Court must summarily dismiss a petition "[i]f it plainly 6 appears from the petition and any attached exhibits that the 7 petitioner is not entitled to relief in the district court....” 8 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 9 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 10 11 1990). The Court may dismiss a petition for writ of habeas corpus 12 either on its own motion under Rule 4, pursuant to the 13 respondent's motion to dismiss, or after an answer to the 14 petition has been filed. 15 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 16 (9th Cir. 2001). 17 dismissed without leave to amend unless it appears that no 18 tenable claim for relief can be pleaded were such leave granted. 19 Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). Advisory Committee Notes to Habeas Rule A petition for habeas corpus should not be 20 III. 21 In this case, Petitioner challenges the sufficiency of the Petitioner’s Failure to Name a Proper Respondent 22 evidence in connection with his conviction in 2009 of criminal 23 offenses in the Superior Court of the State of California, County 24 of Merced. 25 Respondent. 26 named the Attorney General of the State of California. 27 28 Petitioner named the People of California as Although it is unclear, Petitioner may have also (Pet. 1.) At the time the petition was filed, it was not clear in what institution Petitioner was incarcerated. 3 Petitioner named as his 1 place of confinement the Merced Superior Court. 2 Petitioner’s address as listed on the docket included a prisoner 3 number. 4 However, in his objections to the vacated findings and 5 recommendations, Petitioner stated that he is on parole and is 6 connected to a parole outpatient clinic in Madera, California. 7 Petitioner listed a Madera location as his address. 8 9 (Pet. 1.) Petitioner did not name his custodial institution. A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer having custody of him as the 10 respondent to the petition. 11 Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California 12 Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). 13 person having custody of an incarcerated petitioner is the warden 14 of the prison in which the petitioner is incarcerated because the 15 warden has "day-to-day control over" the petitioner and thus can 16 produce the petitioner. 17 378, 379 (9th Cir. 1992); see also, Stanley v. California Supreme 18 Court, 21 F.3d 359, 360 (9th Cir. 1994). 19 officer in charge of state penal institutions is also 20 appropriate. 21 Where a petitioner is on probation or parole, the proper 22 respondent is his probation or parole officer, the official in 23 charge of the parole or probation agency, or the person in charge 24 of the state correctional agency. Habeas Rule 2(a); Ortiz-Sandoval v. Generally, the Brittingham v. United States, 982 F.2d However, the chief Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Id. 25 The Court takes judicial notice of the frequent practice, in 26 cases such as Petitioner’s case, of naming as respondent the head 27 of the correctional system in California, namely, the Secretary 28 of the California Department of Corrections and Rehabilitation 4 1 (CDCR).1 2 office of the Director of Corrections and provided that any 3 reference to the Director of Corrections in any code refers to 4 the Secretary of the CDCR. 5 6 As of July 1, 2005, Cal. Pen. Code § 5050 abolished the The Court therefore concludes that Matthew Cate, Secretary of the CDCR, is an appropriate respondent in this action. 7 IV. Granting Leave to File a Motion to Amend the Petition 8 Petitioner’s failure to name a proper respondent requires 9 dismissal of his habeas petition for lack of jurisdiction. 10 Stanley, 21 F.3d at 360. 11 However, the Court will give Petitioner the opportunity to 12 cure this defect by amending the petition to name a proper 13 respondent. In the interest of judicial economy, Petitioner need 14 not file an amended petition. Instead, Petitioner may file a 15 motion entitled "Motion to Amend the Petition to Name a Proper 16 Respondent" wherein Petitioner may name the proper respondent in 17 this action. 18 Accordingly, Petitioner is GRANTED thirty (30) days from the 19 date of service of this order in which to file a motion to amend 20 the petition and name a proper respondent. Failure to amend the 21 /// 22 /// 23 /// 24 25 1 26 27 28 The Court may take judicial notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981). 5 1 petition and state a proper respondent will result in dismissal 2 of the petition for lack of jurisdiction. 3 4 IT IS SO ORDERED. 5 Dated: ie14hj September 8, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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