Opinion
No. 1:18-cv-00758-JLT (HC)
06-06-2018
DEVARUS GAITHER, Petitioner, v. UNKNOWN, Respondent.
ORDER REQUIRING PETITITONER TO SUBMIT SIGNED DECLARATION
ORDER GRANTING PETITIONER LEAVE TO AMEND RESPONDENT
[TWENTY-DAY DEADLINE]
On May 7, 2018, Petitioner filed a petition for writ of habeas corpus. Upon a close examination of the petition, the Court has discovered that the petition does not contain an original signature or name a proper respondent. Petitioner will be granted an opportunity to cure these deficiencies.
DISCUSSION
Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). I. Respondent
The Rules Governing Section 2254 Cases in the United States Courts (Habeas Rules) are appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas Rule 1(b). --------
Petitioner has failed to name a respondent. A petitioner seeking habeas corpus relief must name the officer having custody of him as the respondent to the petition. Rule 2(a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of an incarcerated petitioner is the warden of the prison in which the petitioner is incarcerated because the warden has "day-to-day control over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also Stanley, 21 F.3d at 360. However, the chief officer in charge of penal institutions is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or parole, the proper respondent is his probation or parole officer and the official in charge of the parole or probation agency or correctional agency. Id.
Petitioner's failure to name a proper respondent requires dismissal of his habeas petition for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 1326 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd Cir. 1976). However, the Court will give Petitioner the opportunity to cure this defect by amending the petition to name a proper respondent, such as the warden of his facility. See West v. Louisiana, 478 F.2d 1026, 1029 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d 363 (5th Cir. 1975) (en banc) (allowing petitioner to amend petition to name proper respondent); Ashley v. State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). In the interests of judicial economy, Petitioner need not file an amended petition. Instead, Petitioner may file a motion entitled "Motion to Amend the Petition to Name a Proper Respondent" wherein Petitioner may name the proper respondent in this action. II. Signature
Local Rule 131(b) requires a document submitted to the Court for filing to include an original signature. In addition, Rule 2 of the Rules Governing Section 2254 Cases requires a petition for writ of habeas corpus to "be signed under penalty of perjury by the petitioner."
In light of the difficulty in having Petitioner submit a new habeas corpus petition, Petitioner is ORDERED to submit a document stating that he submitted the instant petition to the Court and sign it under penalty of perjury. The document should contain an original signature. Petitioner is GRANTED 20 days from the date of service of this order to comply with the Court's directive.
Petitioner is forewarned that failure to comply with a Court order will result in dismissal of the petition pursuant to Local Rule 110.
ORDER
Accordingly, Petitioner is GRANTED twenty days from the date of service of this order in which to:
1) File a motion to amend the instant petition and name a proper respondent; and
2) Submit a document stating that he submitted the instant petition to the Court, and sign it under penalty of perjury.
Failure to comply with this Order will result in a recommendation that the petition be dismissed. IT IS SO ORDERED.
Dated: June 6 , 2018
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE