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Burnett v. Smelosky

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 2, 2010

ESTER BURNETT, PETITIONER,
v.
MICHAEL A. SMELOSKY, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Jan M. Adler U.S. Magistrate Judge

ORDER SUA SPONTE SUBSTITUTING RESPONDENT

Petitioner, a state prisoner proceeding pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. At the time the Petition was filed, Petitioner was apparently housed in California State Prison, Centinela and thus named Michael A. Smelosky, Warden, as Respondent. Petitioner has now filed a change of address indicating he is now housed at High Desert State Prison in Susanville, California.

A writ of habeas corpus acts upon the custodian of the state prisoner. See 28 U.S.C. § 2242; Rule 2(a), 28 U.S.C. foll. § 2254. Because Petitioner's place of custody has changed, so has his custodian. Accordingly, in order to conform with the requirements of Rule 2(a) of the Rules Governing § 2254 Cases and to avoid changing the Respondent again if Petitioner is transferred to another prison or paroled, the Court hereby sua sponte ORDERS the substitution of Matthew Cate, Secretary of the California Department of Corrections, as Respondent in place of "Michael A. Smelosky" See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (stating that the respondent in § 2254 proceedings may be the chief officer in charge of state penal institutions).

IT IS SO ORDERED.

20100702

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