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Andersen v. State

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


October 30, 2009

DOUGLAS ANDERSEN, PETITIONER,
v.
STATE OF CALIFORNIA, RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 42 U.S.C. § 2254. On October 26, 2009, the court filed findings and recommendations recommending that this action be dismissed for petitioner's failure to keep the court appraised of his current address. These findings and recommendations were issued in error and will be vacated.*fn1

Petitioner has not 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.

In reviewing petitioner's habeas petition, it is not clear whether he is attempting to challenge a judgment of conviction entered in the Los Angeles County Superior Court related to the "transfer/sell narcotics." (Petition at 2.) Petitioner is advised that if he is attempting to challenge such a conviction, he should file a new habeas petition with the U.S. District Court for the Central District of California in the Los Angeles Division of that court. Because petitioner was not convicted in this district, and is not presently confined in the Sacramento Division of the Eastern District of California, this court would not have jurisdiction to entertain such a habeas application. If petitioner is challenging a different conviction or a parole revocation that was adjudicated in this district, he should allege facts about that conviction or parole revocation in any amended petition he elects to file in this court.

Petitioner is also advised that he had not named a proper respondent in his habeas petition. "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). The State of California is not a proper respondent in this action.

Finally, petitioner is advised that the exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986). Petitioner must eventually demonstrate that any claims presented in a federal habeas petition have first been presented to the California Supreme Court.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations, filed on October 26, 2009, are vacated;

2. Should petitioner decide to proceed with a habeas action in this court, petitioner shall submit, within thirty days from the date of this order:

a. An affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee;

b. An amended petition that complies with the requirements of the Federal Rules of Civil Procedure; the amended petition must bear the docket number assigned this case and must be labeled "Amended Petition;" the amended petition must be filed on the form employed by this court and must name a proper respondent; petitioner must answer each question on the form petition and clarify the conviction that he is challenging;

3. Petitioner's failure to comply with this order will result in the dismissal of this action; and

4. The Clerk of the Court is directed to provide petitioner with the court's form application for requesting leave to proceed in forma pauperis and form petition for a writ of habeas corpus by a state prisoner.


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