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Parks v. State

September 7, 2010

STEVEN DEAN PARKS, PETITIONER,
v.
STATE OF CALIFORNIA, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER GRANTING PETITIONER'S MOTION TO AMEND THE PETITION

(DOC. 9)

ORDER DIRECTING THE CLERK TO CHANGE THE NAME OF THE RESPONDENT TO KATHLEEN ALLISON

ORDER TO PETITIONER TO SHOW CAUSE IN THIRTY (30) DAYS WHY THE PETITION SHOULD NOT BE DISMISSED FOR PETITIONER'S FAILURE TO EXHAUST STATE REMEDIES

(Doc. 1)

Petitioner is a state prisoner proceeding pro se and in forma pauperis 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 has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on May 27, 2010 (doc. 7). Pending before the Court are the Petitioner's motion to amend the petition to name a proper respondent (doc. 9), and the petition (doc. 1).

I. Motion to Amend the Petition

Petitioner's motion to amend was filed on August 4, 2010, in response to the Court's order of July 26, 2010, granting Petitioner leave to file the motion. Although Petitioner submitted the motion on a petition form, the form appears to repeat all the information in the original petition but omits the exhibits. The Court therefore understands and CONSTRUES Petitioner's document as the motion to amend the petition contemplated by the Court's order of July 26, 2010, and not as an amended petition itself.

Petitioner requests that Kathleen Allison be named as Respondent in this matter. Kathleen Allison acts as warden at the California Substance Abuse Treatment Facility in Corcoran, where Petitioner is housed.

A petitioner seeking habeas relief must name the state officer having custody of him or her as the respondent to the petition. Rule 2(a) of the Rules Governing Section 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of the prisoner is the warden of the prison because the warden has "day to day control over" the prisoner. Brittingham v. United States, 982 F.2d 378, 279 (9th Cir.1992). Therefore, Petitioner's request is proper.

Accordingly, Petitioner's motion for leave to amend the petition to name Kathleen Allison as Respondent in this matter is GRANTED.

The Clerk of Court is DIRECTED to change the name of Respondent to Kathleen Allison.

II. Screening the Petition

Rule 4 of the Rules Governing ยง 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. ...


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