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Lao v. People

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 5, 2009

HOUA LAO, PETITIONER,
v.
PEOPLE OF CALIFORNIA, ET AL., RESPONDENTS.

ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915.

Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit.

A petitioner seeking a writ of habeas corpus must name as respondent the person having custody over him. 28 U.S.C. § 2242; Rule 2(a), Rules Governing Section 2254 Cases. This person ordinarily is the warden of the facility where petitioner is confined. See Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Petitioner names as respondents the People of California and the Attorney General of the State of California, neither one of which has custody over petitioner. Thus, petitioner has not named the proper respondent.

Accordingly, it is ORDERED that:

1. Petitioner's request for leave to proceed in forma pauperis is granted; and

2. The December 29, 2008 petition is dismissed with leave to file an amended petition naming the proper respondent within 30 days of the date of this order. Petitioner's failure to file an amended petition will result in this action being dismissed without prejudice. The Clerk of the Court is directed to send to petitioner the form Petition for a Writ of Habeas Corpus used in this court.

20090305

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