IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 8, 2011
RAYMOND ASARE, PETITIONER,
ON HABEAS CORPUS, RESPONDENT.
Petitioner is a prisoner attacking a judgment of conviction entered by the San Joaquin County Superior Court. While petitioner has filed his action on the form applicable to motions to attack a federal conviction or sentence under 28 U.S.C. § 2255, and petitioner is apparently in the custody of federal immigrations authorities in Arizona, the petition makes clear that petitioner wishes to challenge a state court judgment. Dckt. No. 1 at 1. Accordingly, the petition is properly construed as a petition for writ of habeas corpus rather than a motion under § 2255. See 28 U.S.C. §§ 2241, 2254.
A petitioner seeking a writ of habeas corpus must name as respondent the person having custody over him. 28 U.S.C. § 2242; Rule 2(a), Rules Governing § 2254 Cases. This person ordinarily is the warden of the facility where petitioner is confined. See Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Petitioner does not name any, much less the proper, respondent.
Further, a petitioner seeking a writ of habeas corpus either must pay the $5.00 filing fee, see 28 U.S.C. § 1914(a), or request leave of court to proceed in forma pauperis, 28 U.S.C. § 1915(a). Petitioner has neither paid the fee nor submitted an application for leave to proceed in forma pauperis.
Accordingly, it is ORDERED that:
1. The February 16, 2011 petition is dismissed with leave to file an amended petition naming the proper respondent within 30 days of the date of this order. Petitioner's failure to file an amended petition will result in a recommendation that this action be dismissed without prejudice. The Clerk of the Court is directed to send to petitioner the form Petition for a Writ of Habeas Corpus used in this court.
2. Within 30 days from the day this order is served, petitioner may submit either the filing fee or the application required by section 1915(a). Petitioner's failure to comply with this order will result in a recommendation that this action be dismissed without prejudice. The Clerk of the Court is directed to mail to petitioner a form application for leave to proceed in forma pauperis.
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