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Isaac Vicente v. Ben Curry

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


July 14, 2011

ISAAC VICENTE, PETITIONER,
v.
BEN CURRY, RESPONDENT.

The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

ORDER AMENDING CAPTION

Petitioner, Isaac Vicente, a state prisoner, is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. A petition for habeas corpus relief must name as respondent the state officer having custody of petitioner, typically the warden of the prison in which the petitioner is incarcerated. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (citing Rule 2(a), Rules Governing Proceedings under 28 U.S.C. § 2254 ("[i]f the petitioner is currently in custody under a state-court judgment, the petition must name as respondent the state officer who has custody")). Failure to name as a respondent the petitioner's custodian deprives the federal court of personal jurisdiction. Id. In the instant action, Petitioner named as Respondent Ben Curry. In the State's answer to the petition, the State indicated that Gary Swarhout is the current acting Warden of the California State Prison, Solano, where Petitioner was being held at the time. Resp't's Answer at n. 1. After the State filed its answer on behalf of Mr. Swarhout, Petitioner was moved to High Desert State Prison in Susanville, California. Docket No. 20 (Petitioner's Notice of Change of Address). Mike McDonald is the current warden of the prison. Because the petition is otherwise complete, the court now substitutes as Respondent, Mike McDonald.

THEREFORE, IT IS ORDERED that this matter shall hereinafter be captioned: ISAAC VICENTE, Petitioner v. MIKE McDONALD, Respondent.

20110714

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