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Tapia v. Supreme Court of the State of California

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 13, 2008

MARTIN TAPIA, PETITIONER,
v.
SUPREME COURT OF THE STATE OF CALIFORNIA, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed an amended petition for a writ of habeas corpus pursuant to this court's June 19, 2008 order.

As the court previously advised petitioner, "A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition." Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (citing Rule 2(a), 28 U.S.C. foll. § 2254). In his amended petition petitioner has named a Larry Small as the respondent in this action. It would appear that Mr. Small is not properly named since the proper respondent in the usual habeas action is the warden of the institution where the petitioner is currently incarcerated.*fn1 Accordingly, the instant petition must again be dismissed with leave to amend. See Stanley, 21 F.3d at 360.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's July 21, 2008 request for an extension of time to file an amended petition is denied as unnecessary;

2. Petitioner's July 24, 2008 amended petition is dismissed with leave to file a second amended petition within thirty days from the date of this order;

3. Any second amended petition must be filed on the form employed by this court, must name the proper respondent, and must state all claims and prayers for relief on the form. It must bear the case number assigned to this action and must bear the title "Second Amended Petition"; and

4. The Clerk of the Court is directed to send petitioner the form for habeas corpus application.


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