(HC) Walton v. Sacramento District Court, No. 2:2009cv01384 - Document 8 (E.D. Cal. 2009)
Court Description: ORDER signed by Magistrate Judge Edmund F. Brennan on 12/21/09 ordering the 10/16/09 findings and recommendations 6 are vacated. Petitioner's 11/02/09 motion to proceed in forma pauperis 7 is denied as unnecessary. The 05/19/09 petition 1 is dismissed with leave to file an amended petition naming the proper respondent within 30 days of the date of this order. The clerk of the court shall send petitioner the court's form for application for writ of habeas corpus. (Plummer, M)
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(HC) Walton v. Sacramento District Court Doc. 8 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DAVID M. WALTON, Petitioner, 11 12 13 vs. SACRAMENTO DISTRICT COURT, Respondent. 14 17 18 ORDER / 15 16 No. CIV S-09-1384 LKK EFB P Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus. See 28 U.S.C. § 2254. On November 2, 2009, petitioner paid the filing fee.1 The court requires all petitions for writ of habeas corpus be filed on the proper form 19 which is provided by this court. L.R. 190(b); see also Rule 2(c)-(d), Rules Governing Section 20 2254 Cases. Petitioner is hereby notified that in order for this court to review his May 19, 2009 21 application, he must refile his petition on the proper form. Furthermore, although petitioner may 22 submit a separate memorandum to support his petition for relief, the court’s application form 23 must contain all relevant claims, and must provide the court with all necessary information. See 24 1 25 26 The court will therefore vacate its October 16, 2009 findings and recommendations, which recommended that this action be dismissed on the ground that petitioner had not paid the filing fee or filed a completed in forma pauperis application. The court will also deny petitioner’s motion to proceed in forma pauperis as unnecessary. 1 Dockets.Justia.com 1 L.R. 190(e); Rule 2(c), Rules Governing Section 2254 Cases. 2 Additionally, a petitioner seeking a writ of habeas corpus must name as respondent the 3 person having custody over him. 28 U.S.C. § 2242; Rule 2(a), Rules Governing Section 2254 4 Cases. This person ordinarily is the warden of the facility where petitioner is confined. See 5 Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Petitioner names as 6 respondent the “Sacramento District Court,” which does not have custody over petitioner. 7 Petitioner has not named the proper respondent. 8 Accordingly, it is ORDERED that: 9 1. The October 16, 2009 findings and recommendations are vacated; 10 11 12 13 2. Petitioner’s November 2, 2009 motion to proceed in forma pauperis is denied as unnecessary; 3. The May 19, 2009 petition is dismissed with leave to file an amended petition naming the proper respondent within 30 days of the date of this order; 14 4. Any amended petition must be filed on the form employed by this court and must state 15 all claims and prayers for relief on the form. It must bear the case number assigned to this action 16 and must bear the title “Amended Petition”; 17 18 19 5. Petitioner is cautioned that failure to file an amended petition pursuant to this order may result in a recommendation that this action be dismissed; and 6. The Clerk of the Court is directed to send petitioner the court’s form for application 20 for writ of habeas corpus. 21 Dated: December 21, 2009. 22 23 24 25 26 2
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