IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 14, 2012
D'ARSEY LAWRENCE BOLTON, PETITIONER,
PEOPLE OF THE STATE OF CALIFORNIA, RESPONDENT.
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254.
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.
A petitioner seeking a writ of habeas corpus must also name as respondent the person having custody over him. 28 U.S.C. § 2242; Rule 2(a), Rules Governing Section 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 names as respondent People of the State of California, who does not have custody over petitioner. Petitioner has not named the proper respondent.
Accordingly, it is ORDERED that:
1. 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. The Clerk of the Court is directed to mail to petitioner a form application for leave to proceed in forma pauperis; and
2. The February 3, 2012, 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 also send to petitioner the form Petition for a Writ of Habeas Corpus used in this court.
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