The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING PETITIONER'S
MOTION TO AMEND THE PETITION TO NAME MICHAEL MARTEL AS
RESPONDENT Doc. 12 ORDER DIRECTING THE CLERK TO CHANGE
THE NAME OF THE RESPONDENT
ORDER DEEMING PETITIONER'S
REQUEST FOR STATUTORY TOLLING TO
BE A MOTION FOR A STAY OF THE
PROCEEDINGS (DOC. 11)
ORDER GRANTING PETITIONER'S MOTION FOR STAY AND ABEYANCE (Docs. 11, 13, 14)
ORDER STAYING THE ACTION PENDING EXHAUSTION OF STATE COURT REMEDIES ORDER DIRECTING PETITIONER TO FILE PERIODIC STATUS REPORTS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303. Pending before the Court is Petitioner's motion to amend the petition to name a proper respondent filed on July 8, 2011, and Petitioner's responses to the Court's order to show cause, which were filed on July 8 and 29, 2011.
I. Motion to Amend the Petition
In response to the Court's previous grant of leave to amend the petition, Petitioner requests that Michael Martel be named as Respondent in this matter.
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, 379 (9th Cir. 1992). Therefore, Petitioner's request is proper.
Accordingly, Petitioner's motion for leave to amend the petition to name Michael Martel as Respondent in this matter will be granted, and the Clerk will be directed to change the name of Respondent to Michael Martel.
II. Response to the Order to Show Cause
In the original petition, Petitioner alleged that he is an inmate of the San Quentin State Prison serving a sentence of twenty-five (25) years to life imposed on January 6, 2010, in the Tuolumne County Superior Court upon Petitioner's conviction of corporal injury to a spouse in violation of Cal. Pen. Code § 273.5(a). Petitioner raised the following claims in the petition as to which state court remedies were exhausted: 1) the trial court's failure to instruct on the defense of necessity violated his right to due process of law; 2) trial counsel's failure to request an instruction on the necessity defense violated Petitioner's rights under the Sixth and Fourteenth Amendments to the effective assistance of counsel; and 3) the sentencing court's failure to strike at least one prior conviction resulted in a sentence that was disproportionately severe and grossly excessive in violation of Petitioner's right to due process of law. (Pet. 6-11.)
However, Petitioner also alleged violations of due process of law and ineffective assistance of counsel under the Sixth and Fourteenth Amendments based on the trial court's admission of unspecified evidence concerning a nine-year-old matter involving a negotiated disposition that was relevant to impeach witness Kendall Long. (Pet. 13.)
On July 29, 2011, the Court issued an order to Petitioner to show cause why the petition should not be dismissed for failure to exhaust state court remedies as to the claim or claims concerning the negotiated disposition that should have been used to impeach witness Kendall Long. (Pet. 13.)
On July 8, 2011, Petitioner filed a response to the order to show cause and a motion requesting "statutory tolling"; on July 13, 2011, Petitioner filed a supporting declaration and a further response to the order to show cause. The Court DEEMS these ...