IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 1, 2009
JOHN RICHARDSON, PETITIONER,
SACRAMENTO SUPERIOR COURT, ET AL., RESPONDENTS.
Petitioner, confined in a county correctional center, proceeds without counsel and seeks a writ of habeas corpus. See 28 U.S.C. § 2254.
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. Normally, the person having custody of an incarcerated petitioner is the warden of the prison in which the petitioner is incarcerated (or the sheriff in charge of the jail) 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 v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
In his original petition, petitioner named the Sacramento Superior Court as respondent.
Accordingly, the court granted petitioner leave to file an amended petition naming the proper respondent. In his amended petition, petitioner named the Stanislaus County Superior Court as respondent. Consequently, the court dismissed the amended petition and ordered petitioner to file a second amended petition naming the proper respondent. The court also warned petitioner that his failure to file an amended petition would result in an order dismissing this action without prejudice. On April 27, 2009, petitioner filed an amended petition. It appears that petitioner now seeks to name the California Department of Corrections as respondent. See Apr. 27, 2009 Second Am. Pet. at 13, 14. However, the California Department of Corrections is not the warden of the institution where petitioner is presently confined and, thus, does not have day-to-day control over petitioner.
Accordingly it is hereby ORDERED that the April 27, 2009 petition is dismissed with leave to file a third amended petition naming the proper respondent within 30 days of the date of this order. Petitioner's failure to comply with this order will result in dismissal. The Clerk of the Court is directed to send to petitioner the form Petition for a Writ of Habeas Corpus used in this court. The Clerk of the Court is further directed to forward petitioner's March 27, 2009 filing to the Stanislaus County Superior Court.*fn1