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Powell v. State Attorney General's Office

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


May 28, 2009

MAURICE POWELL, PETITIONER,
v.
STATE ATTORNEY GENERAL'S OFFICE, ET AL., RESPONDENTS.

ORDER

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has not, however, filed an in forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Petitioner will be provided the opportunity to either submit the appropriate affidavit in support of a request to proceed in forma pauperis or submit the appropriate filing fee.

"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). Petitioner has named the State Attorney General's Office and D.V.I. State Prison as respondents in this action. Neither of these entities are a proper respondent in this action. Accordingly, the instant petition must be dismissed with leave to amend. See Stanley, 21 F.3d at 360.

Finally, the claim at bar is based on petitioner's allegations that the Board of Prison Hearings violated the time constraints for hearing set forth in the consent decree in Valdivia v. Schwarzenegger, No. 2:94-cv-0671-LKK-GGH following petitioner's arrest on January 17, 2009. Good cause appearing, the Clerk of the Court will be directed to send a copy of petitioner's petition counsel for the class in Valdivia.

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

1. Petitioner shall submit, within thirty days from the date of this order, an affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee; petitioner's failure to comply with this order will result in the dismissal of this action;

2. Petitioner's application for writ of habeas corpus is dismissed with leave to file an amended petition within thirty days from the date of this order;

3. Any 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 "Amended Petition";

4. The Clerk of the Court is directed to send petitioner the form for habeas corpus application and a copy of the in forma pauperis application used by this district; and

5. The Clerk of the Court is directed to send a copy of petitioner's original petition for writ of habeas corpus to Briana Lynn Morgan, Bingham McCutcheon, Three Embarcadero Center, Suite 1800, San Francisco, CA 94111.

20090528

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