UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 17, 2010
ROBERTO JOSE LEBRON, PETITIONER,
F. GONZALES, RESPONDENT.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER GRANTING PETITIONER'S MOTION TO SUBSTITUTE RESPONDENT AND DIRECTING CLERK OF COURT TO CHANGE NAME OF RESPONDENT
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).
On June 21, 2010, Petitioner filed a motion to substitute the named Respondent in this action. Petitioner indicates that he is currently in custody at California Correctional Institution in Tehachapi, California, and the current warden of the facility is Fernando Gonzales.
A petitioner filing a petition for writ of habeas corpus must name the state officer who has custody of the petitioner as the respondent. Rule 2 (a) of the Rules Governing § 2254 cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996). Normally, the person having custody of an incarcerated petitioner is the warden of the prison in which the petitioner is incarcerated 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). Accordingly, because the current warden having "day-to-day control over" Petitioner is F. Gonzales, the Court will direct the Clerk of Court to change and substitute the name of Respondent in this action to Warden Gonzales.
Based on the foregoing, it is HEREBY ORDERED that:
1. Petitioner's motion to substitute the named Respondent in this action is GRANTED; and
2. The Clerk of Court is directed to substitute Warden F. Gonzales as Respondent.
IT IS SO ORDERED.
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